CCPR/C/126/D/2603/2015
Annex
Individual opinion of Committee members Marcia V.J. Kran,
Vasilka Sancin and Yuval Shany (dissenting)
1.
We regret that we cannot join the majority of the Committee in finding that if the
author were to be deported to Afghanistan by Denmark it would constitute a violation of the
Covenant.
2.
In paragraph 9.5 above, the Committee recalls that “it is generally for the organs of
States parties to the Covenant to review and evaluate facts and evidence in order to
determine whether such risk exists, unless it can be established that the evaluation was
clearly arbitrary or amounted to a manifest error or denial of justice”. This rule is
consistently reflected throughout the Committee’s jurisprudence, 1 and requires a high
threshold, which should not be displaced in the absence of compelling facts clearly
demonstrating arbitrariness or a manifest error or a denial of justice.
3.
As relates specifically to whether an individual’s past affiliation with international
forces could indicate a future risk of persecution contrary to article 7 of the Covenant, the
Committee cites, in the footnote to paragraph 9.6 above, A.H. v. Denmark.2 The facts of that
case were, however, significantly different from those of the present case, and do not
warrant the same legal conclusion. In A.H. v. Denmark, the author suffered from unstable
mental health, and, prior to his arrival in Denmark, had worked with multiple organizations
associated with both the Government of the United States of America and the Government
of Afghanistan to investigate drug-related crimes. In particular, he assisted in the arrest of
two Taliban-affiliated drug lords, which demonstrated a specific conflict with the Taliban,
and, in the context of his past work, he had been the victim of an abduction attempt, he had
received written threats, and his brother had been killed, none of which was refuted by the
State party. Further, at the time that the communication was considered, new information
was available to the Committee, as the author had already been deported to Afghanistan,
where he had suffered a physical assault and had faced continued threats made over the
phone against him and his family.
4.
In the present case, the author was employed as a senior medic with Afghanistan’s
National Directorate of Security from 2007 to 2012 and performed first aid at a United
States base in Kunar Province. He received threats in late 2011 and early 2012, which the
Danish authorities found were related to his position at the United States base, but at a low
level of intensity which renders it unlikely that the Taliban would continue to contact him
after his active service, and the author himself stated that it had been part of his job to
receive similar letters and that this was a risk that he had accepted (para. 4.5). According to
the assessment undertaken by the State party, however, the author did not demonstrate that
either the 2011 shooting incident he was involved in or his 2013 abduction at the hands of
the Taliban were connected to his position – in other words, these events did not arise in the
context of the author’s work. The author, except for his claim, did not submit any evidence
that would demonstrate such a connection.
5.
On review of the submissions, it is clear that the State party considered the particular
facts of this case. It allowed the author to appeal the findings of the Danish Immigration
Service, and reopened the case for consideration before a new panel. The State party also
1
2
12
A.S.M. and R.A.H. v. Denmark (CCPR/C/113/D/2378/2014), paras. 8.3 and 8.6, and E.U.R. v.
Denmark (CCPR/C/117/D/2469/2014), para. 9.7, citing X v. Denmark (CCPR/C/110/D/2007/2010),
para. 9.3, X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18, Pillai et al. v. Canada
(CCPR/C/101/D/1763/2008), paras. 11.2 and 11.4, Lin v. Australia (CCPR/C/107/D/1957/2010), para.
9.3, A.A. v. Canada (CCPR/C/103/D/1819/2008), para. 7.8, and Z. v. Australia
(CCPR/C/111/D/2049/2011), para. 9.3. See also Ashby v. Trinidad and Tobago
(CCPR/C/74/D/580/1994), para. 10.3.
A.H. v. Denmark (CCPR/C/114/D/2370/2014).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents