CEDAW/C/55/D/33/2011
undertake to refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in conformity
with this obligation. This positive duty encompasses the obligation of States parties
to protect women from being exposed to a real, personal and foreseeable risk of
serious forms of gender-based violence, irrespective of whether such consequences
would take place outside the territorial boundaries of the sending State party: if a
State party takes a decision relating to a person within its jurisdiction, and the
necessary and foreseeable consequence is that that person’s rights under the
Convention will be violated in another jurisdiction, the State party itself may be in
violation of the Convention. For example, a State party would itself be in violation
of the Convention if it sent back a person to another State in circumstances in which
it was foreseeable that serious gender-based violence would occur. 29 The
foreseeability of the consequence would mean that there was a present violation by
the State party, even though the consequence would not occur until later. What
amounts to serious forms of gender-based violence will depend on the
circumstances of each case and would need to be determined by the Committee on a
case-by-case basis at the merits stage, provided that the author had made a prima
facie case before the Committee by sufficiently substantiating such allegations.
8.11 In the present case, the Committee takes note of the author’s claim that she
fears being subjected to female genital mutilation by her father and his family if she
is returned to Uganda. It further notes that, according to the information provided by
the author to the Danish asylum authorities and in the context of her communication
to the Committee, she has not met her father since the age of 9 years and is unaware
of any siblings, female relatives or any other women who have been circumcised.
Furthermore, the author gave contradictory information as to her ethnicity/clan/tribe
in Uganda and failed to provide, the repeated requests from the Committee
notwithstanding (see paras. 2.8-2.10), any independent evidence supporting her
claims that women belonging to the Mogishu ethnic group/tribe continued to be
subjected to female genital mutilation in Uganda and that female circumcision was
being practised on adult women who gave birth to a child or children. Even
assuming that the name of the clan/tribe could have been misspelled by the Danish
asylum authorities and the author’s ethnicity/tribe is indeed Bagishu, Bagisu or
Mugisu, she provided no independent evidence showing that women belonging to
the Bagishu, Bagisu or Mugisu ethnic group/tribe were being subjected to female
genital mutilation in Uganda. In this context, the Committee also notes that the
Prohibition of Female Genital Mutilation Act entered into force in Uganda on
9 April 2010.
8.12 In the circumstances and in the absence of any other pertinent information on
file, the Committee considers that the author has failed to sufficiently substantiate,
for purposes of admissibility, the claim that her removal from Denmark to Uganda
would expose her to the real, personal and foreseeable risk of serious forms of
gender-based violence. The Committee notes that, under article 4 (2) (c) of the
Optional Protocol, it must declare a communication inadmissible where it is not
sufficiently substantiated. Accordingly, the Committee concludes that the
communication is inadmissible under article 4 (2) (c) of the Optional Protocol.
8.13 In the light of this conclusion, the Committee decides not to examine any other
inadmissibility grounds invoked by the State party.
__________________
29
18/19
See Kindler v. Canada, footnote 26 above.
13-42827
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