CEDAW/C/91/D/169/2021- K.J. v. Switzerland

Case Full Name: Communication No. 169/2021, K.J. v. Switzerland Official Citation: CEDAW/C/91/D/169/2021, Views adopted on 4 July 2025; Related  domestic case: Federal Administrative Court of Switzerland, E-2779/2023 (judgment date 23  November 2023, available on https://share.google/yvezBtwaodGlpmY1J 

Court Name & Bench 

∙ International Tribunal: United Nations Committee on the Elimination of  Discrimination against Women (CEDAW Committee) 

∙ Domestic Court: Federal Administrative Court of Switzerland 

∙ Bench Composition: Panel of judges, including Presiding Judge Brenda Akia, Hiroko  Akizuki, Hamida Al-Shukairi, Violet Eudine Barriteau, Rangita de Silva de Alwis,  Corinne Dettmeijer-Vermeulen, Nada Moustafa Fathi Draz, Yamila, González Ferrer,  Madina Jarbussynova, Marianne Mikko, Mu Hong, Ana Peláez Narváez, Jelena Pia 

Comella, Bandana Rana, Elgun Safarov and Patsilí Toledo Vásquez 

Date of Judgment 

∙ CEDAW Committee: 4 July 2025 

∙ Swiss Federal Administrative Court: 23 November 2023 

Parties Involved 

∙ Petitioner: K.J., a female Hazara refugee from Afghanistan, survivor of severe sexual  and gender-based violence, fleeing persecution in Iran and Greece before seeking  asylum in Switzerland. 

∙ Respondent: Switzerland, the State Party responsible for asylum determination and  removal decisions under Dublin III Regulation.

Facts of the Case 

K.J. was forcibly married at the age of 17 to a significantly older man in Iran, escaping  chronic sexual, physical, and psychological abuse. Despite reporting abuses, patriarchal  legal and social systems in Iran offered no protection, including for marital rape, forcing  K.J. to return repeatedly to abusive conditions due to family economic pressures.  Eventually aided by neighbours, she fled the oppressive environment. 

During a perilous exodus to Europe, K.J. suffered multiple rapes near the Iraqi-Turkish  border and on the Greek island of Lesbos where she was granted asylum. However, her  protected status in Greece did not shield her from further sexual violence, homelessness,  and lack of mental healthcare, leading to severe mental health conditions diagnosed as  post-traumatic stress disorder, panic disorder, and major depression and multiple  hospitalizations. Her estranged husband reportedly followed her to Athens, compounding  her insecurity. 

K.J. later sought asylum in Switzerland, Swiss authorities identified Greece as the  responsible country under the Dublin III Regulation, ordering her removal back to  Greece despite her contested safety. Swiss authorities and courts concluded Greece was a  “safe third country,” citing European Union law and Greek institutions capable of  providing the necessary medical and police protection. 

K.J. challenged her removal through multiple Swiss administrative appeals on grounds of  extreme vulnerability due to gender-based persecution and severe mental health issues.  Her appeals were dismissed, primarily attributing her claims of risk to untimely  allegations and inconsistent statements, and upholding Greece’s status as a safe country. 

Issues Raised 

∙ Whether Switzerland breached its obligations under articles 2 (c) (f), 3, and 12 of the  CEDAW Convention by failing to conduct an individual, trauma-informed, gender  sensitive risk assessment prior to ordering K.J.’s removal to Greece. 

∙ Whether returning K.J. to Greece would violate the non-refoulement principle due to  serious risks of GBV, psychological harm, and lack of adequate protection and care. 

∙ Whether K.J. exhausted domestic remedies in Switzerland and whether procedural  fairness was afforded during asylum and appeal processes.

∙ The sufficiency of evidence supporting K.J.’s claims, especially concerning the  realities of protection and assistance for vulnerable refugee women in Greece. 

Arguments of the Parties 

Petitioner (K.J.) 

K.J. argued that Swiss authorities failed to adequately assess her particular  vulnerabilities as a survivor of gender-based violence and severe mental illness, in  violation of multiple CEDAW provisions. She presented medical documentation and  personal testimony evincing real and foreseeable risks in Greece that encompassed  repeated sexual assault, psychological trauma, homelessness, and threats from her  husband. 

She criticized the Swiss authorities for relying on abstract assurances about Greek  protection without investigating the reality of her lived experience. K.J. contended  that the Swiss asylum process lacked the trauma sensitivity and gender awareness  necessary for fair decision making and ignored the obstacles victims face in disclosing  sexual violence timely. 

K.J. further argued exhaustion of domestic remedies through her appeals and sought  interim protection against removal pending reassessment. 

Respondent (Switzerland) 

Switzerland maintained that Greece was a safe third country under EU and  international law, capable of providing legal, medical, and social protection to  refugees, including victims of GBV. Swiss authorities argued the asylum procedures,  interviews, and appeals process afforded K.J. ample opportunity to present her claims,  with refusals reflecting evidentiary insufficiency rather than discrimination. 

Swiss authorities emphasized K.J.’s delayed introduction of some sexual violence  allegations in Swiss proceedings, undermining credibility. They asserted adherence to  procedural fairness and compliance with international standards, contending that  medical reports did not contraindicate her removal. Switzerland relied on the  European Court of Human Rights’ prior recognition of Greece’s protection standards. 

Judgment / Final Decision 

The CEDAW Committee found Switzerland in violation of articles 2 (c)–(f), 3, and 12 of  the Convention by ordering K.J.’s removal without an adequate gender-sensitive,  individualized risk assessment. The Committee held that the Swiss authorities failed to 

accord her vulnerabilities sufficient weight, disregarding delayed disclosure issues  common to trauma survivors. 

The Committee determined that K.J. faced real, personal, and foreseeable risks of  irreparable harm if she returned to Greece, including severe GBV and mental health  consequences. It concluded that the Swiss removal order contravened the non refoulement obligations under international human rights and refugee law as integrated  into the CEDAW framework. 

Recommendations included reopening K.J.’s asylum application and refraining from  removal pending reassessment, along with continued specialized health support. The  Committee urged states to institute trauma-informed, gender sensitive detention and  asylum procedures, particularly under Dublin III transfers. 

Dissenting Opinion 

The dissenting opinion raised by committee members such as Hiroko Akizuki, Rangita  de Silva de Alwis, Corinne Dettmeijer-Vermeulen and Jelena Pia-Comella. The four members of the Committee dissented, arguing the communication was  inadmissible due to insufficient substantiation and raised procedural concerns: 

∙ They pointed out inconsistencies in K.J.’s statements regarding the violence  suffered in Greece that affected her credibility. 

∙ They emphasized that she had multiple earlier opportunities to disclose her  claims and had not plausibly explained the late disclosure. 

∙ They maintained that it is primarily national authorities’ competence to evaluate  asylum claims and application of laws such as the Dublin III Regulation.

∙ They held that Greece was legally and practically bound to provide protection to  refugees and should be considered safe. 

Therefore, they would have declared the communication inadmissible and found no  violation. 

Legal Reasoning / Ratio Decidendi 

The Committee’s reasoning was grounded in several international legal principles and  prior jurisprudence:

∙ CEDAW Obligations: Articles 2, 3, and 12 impose duties on States Parties to  eliminate discrimination in public and private spheres, protect women from gender based violence, and provide appropriate health services including psychological care  to women. 

∙ Principle of Non-refoulement: The Committee reinforced that the principle includes  protection from return to environments where victims face torture, ill-treatment, or  discrimination, extending extraterritorially to asylum procedures such as Dublin III  transfers. 

∙ Gender-Based Violence as Discrimination: The Committee relied on General  Recommendations Nos. 19, 32, and 35, emphasizing states’ responsibility for acts and  omissions that perpetuate GBV, including by failing to protect regardless of whether  violence is state-sponsored or by private actors. 

∙ The evaluation of K.J.’s asylum claim lacked an individualized, trauma-informed  approach sensitive to the specific manifestations of gender-based persecution and  mental health impairment. 

∙ Late disclosures should not be summarily disbelieved without exploring the trauma  dynamics restricting prompt reporting. 

∙ The inadequacy of general assurances about Greece’s protection system without  concrete, case-specific evidence negates meaningful risk evaluation. 

∙ Swiss procedure fell short of the substantive guarantees under CEDAW, amounting to  a breach when assessed in totality. 

Conclusion and Observations 

The historic decision in communication No. 169/2021 by the CEDAW Committee against Switzerland marks a significant advancement in gender sensitivity and responsive  jurisprudence and individual assessment on litigation by concretely applying the  CEDAW to asylum and refugee contexts. The Committee’s views emphasize that states  have an unequivocal obligation to conduct individualized, gender-sensitive, trauma informed assessments when considering the removal or transfer of women survivors of  GBV, such as under the Dublin III Regulation. This decision serves both as a protective precedent for vulnerable refugee women worldwide and as a clear call for states to  elevate their asylum adjudication frameworks beyond rigid procedurals toward  substantive equality and justice. 

This case starkly illustrates the chasm that often exists between formal legal frameworks  and the realities of vulnerable women fleeing GBV. The following critical reflection  raised by focusing on gender sensitivity, institutional responsiveness and social justice. First, the failure by Swiss authorities to undertake a meaningful, trauma-informed, and  gender-sensitive assessment contravenes basic principles of equality and non discrimination embedded in both international law and progressive domestic legal  mandates. Recognizing GBV as a form of discrimination requiring proactive state  protection is fundamental to fulfilling CEDAW’s transformative promise. The dismissive treatment of delayed disclosures reflects persistent gender biases and lack  of understanding around the complexities of sexual and domestic violence trauma. Trauma psychology demonstrates that survivors often face immense barriers to  immediate disclosure, including fear, stigma, and cultural pressures, factors that must  shape asylum adjudications. International human rights norms increasingly affirm that  procedural justice requires environments where survivors can safely disclose without  penalty. 

Switzerland’s reliance on abstract assurances of Greece’s protective capacities highlights  disconnect between legal formality and lived experiences of refugees, particularly  women and mental health sufferers. Despite EU and European Court of Human Rights  rulings, Greece’s reception conditions for refugees are often critiqued for inadequate  protection from exploitation, insufficient housing, and scarce gender-based violence  services. Thus, robust fact-based evaluations beyond formal legalities are essential. 

This decision underscores the urgency of institutional reforms both domestically and  internationally. Domestic asylum bodies must incorporate gender expertise and trauma  awareness systematically into decision-making, training adjudicators to recognize power  dynamics that disadvantage women. The Swiss Federal Administrative Court’s dismissal  as emphasized by the dissenting opinion in the CEDAW Committee, calls for greater  judicial sensitivity and integration of international human rights oversight in domestic  proceedings. 

Internationally, this case marks a progressive development asserting CEDAW’s  extraterritorial effect over asylum procedures, which historically lagged behind other  human rights covenants in this realm. It aligns with growing recognition that refugee law must be fully gender sensitive and responsive to meet the obligations of equality  enshrined in the UN system. 

For host countries like Ethiopia nations grappling with large populations of displaced  women facing gender-based persecution this case presents a valuable legal and  normative template. It emphasizes that protective mechanisms must transcend generic  refugee frameworks to ensure gender equality and social justice. 

To attain genuine equality, domestic laws must adopt intersectional approaches  addressing gender, trauma, and displacement. International cooperation and monitoring,  notably through bodies like the CEDAW Committee, must continue pressing for  standards that embed gender sensitivity and responsiveness as a non-negotiable criterion in asylum and refugee protection frameworks. 

In conclusion, this case highlights the urgent need for institutional accountability and  gender responsive and sensitive justice to protect the most vulnerable groups particularly  women a cause requiring sustained advocacy, legislative reform, and judicial vigilance  worldwide. 

Reference(S):

1. Convention relating to the Status of Refugees, 28 July 1951, 189 UNTS 150. 2. Convention on the Elimination of All Forms of Discrimination Against Women, 18  December 1979, United Nations, Treaty Series, vol. 1249,  
2. Communication No.169/2021, K.J. v Switzerland Official Citation: CEDAW/C/91/D/169/2021, adopted on 4 July 2025 
3. Federal Administrative Court of Switzerland, E-2779/2023 (judgment date 23  November 2023) 
4. CEDAW Committee, ‘General recommendation No. 32 on the gender-related  dimensions of refugee status, asylum, nationality and statelessness of women’ (2014). 6. CEDAW General Recommendations Nos 19(1992), 35 (2017). 
5. European Court of Human Rights, M.S.S. v Belgium and Greece App No 30696/09  (2011),  
6. Human Rights Watch, ‘Greece: Abuses Against Refugees, Migrants’ (March 2020).
7. UNHCR, ‘Guidelines on International Protection: Gender-Related Persecution’  (2002); UNHCR Standing Committee, ‘Women and Girls at Risk in the Refugee  Context’ (2015).