The author is an Afghan national, who alleged that he would be the victim of a violation of Article 7 of the Covenant by Denmark if forcibly deported to Afghanistan. The author alleged this was due to his previous work in international forces and contact with the Taliban, he runs the risk of facing torture and ill-treatment.
The author states that he worked with the Afghanistan's National Directorate of Security from 2007 to 2012, where he was tasked with numerous activities including arresting members of the Taliban. During this period, the author was sent threatening letters to his home, and also the victim of armed attacks on his vehicle. The author notes he was kidnapped and detained in December 2012 for 4 months before he managed to escape. Shortly after, the author entered Denmark without any valid travel documents and applied for asylum.
The Danish Immigration Service refused his application in November 2014, and the Refugee Appeals Board upheld this decision in March 2015.
- The author claims there are substantial grounds for believing he would be in danger of being subjected to torture or to cruel, inhuman or degrading treatment or punishment if returned to Afghanistan, and therefore Denmark would violate his rights under Article 7 of the Covenant if returned.
- The Committee ascertained that the matter is not being examined under another procedure of international investigation or settlement, and that the author has adequately substantiated the reasons why he fears ill-treatment if forcibly returned to Afghanistan.
- The Committee further noted that the Danish Refugee Appeals board had rejected the authors asylum request, and as such decision cannot be appealed, domestic remedies have been exhausted by the author.
The Committee noted the details of the complaint and the position of the State party, however recalled its general comment 31 (2004) which imposes an obligation on State parties "not to extradite, deport, expel or otherwise remove a person from their territory when there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant". Additionally, that the "risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists" (pp 9.4).
The Committee also noted the substantial weight placed on the assessment of the State party, however in this case considered that "the Refugee Appeals Board failed to adequately assess the author’s real, personal and foreseeable risk if he were returned to Afghanistan". This was not solely the basis of his profile as a former employee of the international forces, but also "on the risk of future ill-treatment by the Taliban which reasonably follows from his individual circumstances including his past ill-treatment in his country of origin". (pp. 9.13)
- The Committee noted that the removal of the author to Afghanistan would, if implemented, constitute a violation of Article 7 of the Covenant regarding freedom from torture or cruel, inhuman or degrading treatment or punishment.
The Committee requested that the State party:
- Review the authors case taking into account their obligations under the Covenant and the Committee's views, while refraining from expelling the author while the asylum request is considered;
- Provide an update within 180 days of the measures taken in providing an effective remedy to the author;
- Disseminate the views widely in the official language of the State party.
Individual opinion of Committee members Marcia V.J. Kran, Vasilka Sancin and Yuval Shany (dissenting)
- Committee members Marcia V.J. Kran, Vasilka Sancin and Yuval Shany recalled the Committee's previous comments, noting that "it is generally for the organs of State parties to review and evaluate facts and evidence in order to determine whether such risks exist, unless it can be established that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice".
- They noted that in their view, it was clear from submissions that the State party considered the particular facts of the case and allowed the relevant domestic appeals process to function. This process included consideration for the general human rights situation in Afghanistan, and took into account the context of the author's personal circumstances. Further, that there was no information presented to the Committee that would allow them to challenge the risk assessment of the Danish authorities.
- On this basis, they concluded that the decision of the Danish authorities to refuse asylum could not amount to manifest error or denial of justice that would trigger a violation of Article 7 (freedom from torture, or cruel, inhuman or degrading treatment of punishment).