ICCPR Case Digest

CCPR/C/126/D/2685/2015

Communication

2685/2015

Submission: 2015.11.19

View Adopted: 2019.07.24

R.M. and F.M. v. Denmark

Substantiated real risk of ill-treatment if authors removed to Afghanistan, failure of state authorities to take into account individual circumstances

Substantive Issues
  • Deportation
  • Non-refoulement
  • Right to life
  • Torture / ill-treatment
Relevant Articles
  • Article 17
  • Article 23
  • Article 6
  • Article 7
Full Text

Facts

The authors are a husband and wife of Afghan nationality, and claim that deportation to Afghanistan would violate their rights under articles 6, 7, 17 and 23 of the Covenant.

The authors fled Afghanistan after having had sexual relations outside of marriage, subsequently resulting in F.M.'s pregnancy. Three months into the pregnancy, F.M. was formally engaged to one of her uncle's friends, who was older and whom she had had no previous contact.

The authors fled together to Turkey, where they resided for 6 months and their son was born. They then fled together to Greece, where they stayed for 14 months. The authors entered Denmark without documentation in April 2012, and applied for asylum on the day of arrival. F.M. declared she feared of being killed by her uncle or her fiance for having sexual relations before marriage.

The Danish authorities declined both asylum applications, with subsequent appeals also declined. 

Merits

The Committee noted that their test remains whether there are substantial grounds for believing that the circumstances invoked may have serious adverse consequences in the country of origin, such as to create a real risk of irreparable harm, as contemplated by articles 6 and 7 of the Covenant.

In this case, the Committee observed that the decision of the Danish authorities was taken largely on inconsistencies in the authors' statements, and emphasised that it is for state authorities to underatke an individualised and personal risk assessment, rather than focusing on inconsistencies when comparing both applications. In this context, the authorities did not assess whether the extra-maritial relationship could have adverse consequences for them in Afghanistan.

The Committee therefore found that the state party failed to take into consideration all consequences of the authors' personal situation, and therefore if removed, would violate the rights under article 6 and 7 of the Covenant. 

Recommendations

The Committee requested that the Danish authorities undertake to review the author's case, taking into account their obligations under the Covenant and the Committee's views. The state is also requested to refrain from expelling the authors while this review is undertaken.

Separate Opinions

Individual opinion of Shuichi Furuya (dissenting)

  • Committee member Shuichi Furuya disagreed with the majority on the basis that their determination overlooks an essential procedure in the determination of refugee status (namely the verification of author statements). Member Furuya noted that on this basis, the Committee should not find that there had been a manifest error or a decision that was clearly arbitrary amounting to a denial of justice.

Joint opinion of Photini Pazartzis, Yuval Shany and Andreas Zimmermann (dissenting)

  • Committee members Photini Pazartzis, Yuval Shany and Andreas Zimmermann disagreed with the majority on the basis that they felt the Danish authorities rejected the authors' arguments on the basis of their credability, as opposed to failing to conduct an individualised assessment. They felt that the author's failed to demonstrate that extra-marital relations did not raise a real and personal risk of persecution, and further that this reasoning could not lead to an outcome where the procedural defects of the Danish authorities meant their asylum decision could be in doubt. 

Implementation

The state party is requested to provide within 180 days, or before 24 January 2020, information about the measures taken to give effect to the Committee’s Views.

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