CRPD/C/25/D/58/2019 B. Issues and proceedings before the Committee Consideration of admissibility 9.1 Before considering any claim contained in a communication, the Committee must decide, in accordance with article 2 of the Optional Protocol and rule 65 of its rules of procedure, whether the communication is admissible under the Optional Protocol. 9.2 The Committee must ascertain, as required under article 2 (c) of the Optional Protocol, that the same matter has not already been examined by the Committee, and that it has not been, nor is it being, examined under another procedure of international investigation or settlement. The Committee notes that the author submitted a complaint to the European Court of Human Rights based on the same facts presented to the Committee. By decision of 10 January 2019, the European Court found that his complaint did not meet the admissibility criteria set out in articles 34 and 35 of the Convention. The Committee recalls that, when the European Court bases a declaration of inadmissibility not solely on procedural grounds but also on reasons that include a certain consideration of the merits of a case, “the same matter” should be deemed to have been examined within the meaning of article 2 (c) of the Optional Protocol. However, the Committee considers that, based on the succinct nature of the decision rendered by the European Court and, in particular, the absence of any argument or clarification to justify a rejection of the application based on the merits, the Committee is not in a position to determine with certainty that the case presented by the author has already been the subject of an examination, however limited, on the merits. The Committee thus finds that article 2 (c) of the Optional Protocol does not constitute a barrier to the admissibility of the present communication.15 9.3 The Committee notes the State party’s submission that the communication should be declared inadmissible ratione materiae and ratione loci under article 1 of the Optional Protocol or as being insufficiently substantiated under article 2 (e) of the Optional Protocol, and that the part of the communication relating to the author’s claims under articles 12 and 13 of the Convention should also be declared inadmissible because domestic remedies were not exhausted. 9.4 The Committee refers to its jurisprudence in O.O.J. v. Sweden, in which it noted that the removal by a State party of an individual to a jurisdiction where he or she would risk facing violations of the Convention may, under certain circumstances, engage the responsibility of the removing State under the Convention (para. 10.3). The Committee considers that the principle of non-refoulement imposes a duty on a State party to refrain from removing a person from its territory when there is a real risk that the person would be subjected to serious violations of Convention rights amounting to a risk of irreparable harm, including but not limited to those enshrined in articles 10 and 15 of the Convention. 16 The Committee therefore considers that the principle of extraterritorial effect would not prevent it from examining the present communication under article 1 of the Optional Protocol. In this connection, the Committee notes the author’s claims that his removal to Afghanistan would lead to a grave risk to his life and health, as he would be unable to access necessary and lifesaving medical care in that country. The Committee considers that the author has sufficiently substantiated these claims raised under articles 10 and 15 of the Convention for the purposes of admissibility. 9.5 The Committee notes the author’s claims under articles 12 and 13 of the Convention. It considers that the part of the communication alleging that in the course of the asylum procedures the authorities failed to accommodate the author’s special needs stemming from his medical condition, has not been sufficiently substantiated for the purposes of admissibility. In this connection, the Committee deems that the author failed to identify the adjustments he needed and in particular, he failed to show that he had requested the adoption of such measures from the migration authorities. He further failed to explain in concrete terms in what way he had been impaired in presenting his case before the migration authorities. The Committee therefore finds this claim inadmissible under article 2 (e) of the Optional Protocol. 15 16 See, e.g., V.F.C. v. Spain (CRPD/C/21/D/34/2015), para. 7.2. Human Rights Committee, general comment No. 31 (2004), para. 12. 9