CEDAW/C/55/D/35/2011
during her asylum proceedings that she fled Burundi owing to political persecution,
and that she had been raped by three men while fleeing, should be sufficient for the
State party to consider rape to be a form of discrimination against women and
gender-related persecution, whether alone or intersecting with alleged political
persecution. The author should not be required to make explicit reference to rape as
a form of discrimination against women but to raise the substance of her claim,
which is what she did. Sexual violence and rape is universally accepted as a form of
gender-based violence against women and a form of discrimination against women
falling under article 1 of the Convention, as elaborated in the Committee’s general
recommendation No. 19, which has clearly placed violence against women within
the ambit of discrimination against women by stating that gender-based violence is a
form of discrimination against women and includes acts that inflict physical, mental
or sexual harm or suffering, threats of such acts, coercion and other deprivations of
liberty.
5.
In fact, for the purpose of admissibility, the author needs to sufficiently
substantiate that she has a well-founded fear of being persecuted under the 1951
Convention relating to the Status of Refugees (Refugee Convention). She did this by
explaining facts relating to her political persecution as a member of the Front
national de libération (FNL), the opposition party, whose members were expelled
and killed; that her home town, where many FNL members lived, was bombarded by
the Government of Burundi (see para. 4.2); that she was raped by three men armed
with knives while she was fleeing; and that she was unable to seek justice because
the attack by government forces.
6.
Furthermore, the State party also submitted that it assessed and rejected “the
author’s argument that the State party recognizes only political persecution against
men” (para. 6.4.). This claim of the author and the assessment of the State party
present clear evidence that the author raised in substance a claim of sex-based
discrimination relating to political persecution at the national level.
7.
Consequently, the State party’s authorities had an opportunity to consider sexbased discrimination with regard to political persecution and to rape as a form of
sexual violence that is recognized as a form of gender-related persecution and as a
form of discrimination against women, together or separately. Accordingly, I find
the present communication admissible under article 4 (1) of the Optional Protocol.
8.
I support the Committee’s findings on the admissibility ratione loci with
regard to article 2 of the Optional Protocol (paras. 8.5-8.8). In addition, I find it also
admissible ratione materiae under article 4 (2)(b). This case is also admissible
under articles 4 (2)(c) and 4 (2)(d), given that it is compatible with the provision of
the Convention that addresses sex-based or gender-based discrimination. In the
present case, I find that the author has sufficiently substantiated her allegations for
the purpose of admissibility.
9.
With regard to violations of articles 1, 2 (c), 2 (d) and 3 of the Convention, I
find violations of articles 2 (c) and 2 (d), in conjunction with articles 1 and 3, by the
State party. Article 2 (c) establishes a positive duty of States parties to ensure the
effective protection of women against any act of discrimination, while article 2 (d)
requires States parties to refrain from engaging in any act or practice of
discrimination during the entire asylum process. This applies in respect of both the
substantive analysis and application of the provisions of the Convention on the
Elimination of All Forms of Discrimination against Women and of the Refugee
13-43086
17/20
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