Legality of deportation in instance of trafficking and threat by family members on return to Albania

Facts

The author is an Albanian national who was forced to marry a Serbian national and relocate to Serbia where she was physically abused and subject to forced labour. The author’s husband’s family had paid 7000 euros for the author. While on a visit to Albania, the author filed a complaint about the assault she was subject to, which did not succeed due to lack of evidence. The author decided to not return to Serbia and filed for divorce, which was rejected by her husband’s family who also asked for a reimbursement of the amount that they had paid for her. Fearing for her life based on previous instances where she had been attacked by her family members for humiliating the family, the author fled to Denmark and applied for asylum in 2015.

The Danish Immigration Service decided that the author did not fall under the definition of a trafficked person, and that it was outside the competence of the Refugee Appeals Board to decide whether to grant her a residence permit for humanitarian reasons. The Immigration Service held that her case fell within the competence of the Ministry of Immigration and Integration. The Refugee Appeals Board held that there were no grounds to process the author’s appeal for an oral board meeting, and while accepting the author’s factual claims, it did not consider the author’s situation to be of such a severity so as to grant a residence permit. The author requested her case be reopened and the Refugee Appeals Board agreed to this request but upheld its previous decision. The author claims that if she were to be deported to Albania, then her right to life, right to not be subject to cruel and inhuman treatment, and fair trial rights under articles 6, 7 and 14 of the Covenant would be violated.

Admissibility

While noting that the author raised claims under article 8 which provides for rights against servitude and slavery, the Committee held that the author did not develop those allegations and failed to sufficiently substantiate them for the purposes of admissibility, and hence that part of the communication under article 8 was declared inadmissible under article 2 of the Optional Protocol.

The Committee observed that to the extent that the author’s allegation of article 14 relies on violations that she will suffer after her return to Albania, such a claim would be incompatible ratione loci with the provisions of the Covenant and hence would be inadmissible under article 3 of the Optional Protocol. With respect to the author’s claims under articles 6 and 7, the Committee held that they were sufficiently substantiated for the purposes of admissibility.

Merits

With respect to the author’s claims under articles 6 and 7 and threat to her life by her family members on her return to Albania, the Committee stated that it was tasked with assessing whether the Danish domestic authorities had properly assessed whether the author would face a violation of rights under articles 6 and 7 on her return to Albania. The Committee observed, keeping in mind that the author’s uncle had already been once incarcerated for attacking her, that the State party had not considered the gap between law and practice when arguing that Albania had taken legislative steps to protect women victims of family and gender-based violence. The Committee also expressed concern about blood feud-related crimes, and ineffective investigations of such cases prevalent in Albania.

The Committee held that the State party did not give due regard to the author’s allegations of corruption in the Albanian judiciary. Regarding the author’s claims that she would be at a risk of being re-trafficked on her return to Albania, the Court noted that despite the Danish Centre against Trafficking assessing that the author was a victim of trafficking, the Danish Immigration service had rejected this claim and found that the author had not been subject to trafficking. The Committee held that the State party was arbitrary in failing to adequately consider the evidence according to which the author would be at a real risk of irreparable harm if deported to Albania and would violate the author’s rights under articles 6 and 7.

Recommendations

State party is under an obligation to review the author’s claims and refrain from expelling her to Albania while her request is under consideration.

Implementation

Deadline for implementation: 12 September 2023