CCPR/C/128/D/3032/2017
4.10 As to the admissibility, the State party submits that the communication is not
sufficiently substantiated and is manifestly unfounded, making it inadmissible pursuant to
article 3 of the Optional Protocol and rule 96 (b) of the Committee’s rules of procedure. As
regards the author’s claim under article 18, the State party contends that, unlike articles 6
and 7, article 18 does not have extraterritorial application. It submits that this part of the
communication should therefore be declared inadmissible ratione materiae pursuant to
article 3 of the Optional Protocol.1
4.11 With regard to the alleged violation of articles 6 and 7 of the Covenant, the State
party notes that when determining whether the expulsion of the author to Afghanistan
constitutes a breach of article 6 or 7 of the Covenant, the following considerations are
relevant: the general human rights situation in Afghanistan and, in particular, the personal,
foreseeable and real risk of breach of article 6 or 7 of the Covenant that the author would be
subjected to following his return to Afghanistan. The State party also notes that
considerable weight should be given to the assessment conducted by the State party, as it is
generally for the domestic authorities to directly review or evaluate facts and evidence in
order to determine whether a real risk of irreparable harm exists, unless it is found that the
evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.
4.12 As to the general human rights situation in Afghanistan, the State party notes that
Afghanistan is a party to the Covenant, as well as to the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. It also refers to the
Migration Agency’s new legal position paper on Afghanistan, indicating that even though
the security situation in the country has deteriorated, there is still great variation in the
intensity of the conflict in different locations. The State party submits that while it does not
wish to underestimate the concerns with respect to the current situation in Afghanistan, a
general situation does not in itself suffice to establish that the author’s expulsion would
contravene articles 6 and 7 of the Covenant. The assessment before the Committee must
thus focus on the foreseeable consequences of the author’s expulsion to Afghanistan in the
light of his personal circumstances.
4.13 The State party submits that the author has failed to substantiate his claim that he
would run a personal and real risk of being subjected to treatment in Afghanistan in
violation of articles 6 and 7 of the Covenant. The State party points out that several
provisions in the Aliens Act of Sweden reflect the same principles as those laid down in
articles 6 (1) and 7 of the Covenant. Thus, the Swedish migration authorities apply a similar
test when considering an application for asylum under the Aliens Act as the Committee
does when it is examining a complaint under the Covenant.
4.14 The Migration Agency conducted several interviews with the author in presence of a
public counsel and interpreters. Therefore, the author had several opportunities to explain
the relevant facts and circumstances in support of his claim and to argue his case, both
orally and in writing, before the Migration Agency, and in writing before the Migration
Court.
4.15 Against this backdrop, the State party holds that it must be considered that the
Migration Agency and the Migration Court had sufficient information, together with the
facts and evidence in regard to the present case, to ensure that they had a solid basis for
making a well-informed, transparent and reasonable risk-assessment concerning the
author’s case. Furthermore, in view of the fact that the Migration Agency and the migration
courts are specialized bodies with particular expertise in the field of asylum law and
practice, the State party contends that there is no reason to conclude that the national
rulings were inadequate or were in any way arbitrary or amounted to a denial of justice.
Accordingly, the State party holds that considerable weight must be attached to the
opinions of the Swedish migration authorities.
4.16 As regards the author’s claims that he risks persecution as he is an ethnic Hazara, the
State party refers to country information indicating that the Shia and Hazara ethnic
minorities are essentially one and the same group in Afghanistan and that the Taliban has
referred to them as “brothers”. The State party further notes that discriminatory intent based
1
J.D. v. Denmark (CCPR/C/118/D/2204/2012), para. 10.7.
5