CCPR/C/116/D/2402/2014
Annex III
Individual opinion of Committee member Anja Seibert-Fohr
(concurring)
1.
I concur with the Committee’s Views. I write separately in the hope of shedding
further light on the Committee’s reasoning, which is summarized in paragraph 6.6 and led
to the conclusion that the communication is inadmissible under article 2 of the Optional
Protocol.
2.
According to the Committee’s standing jurisprudence, States parties are under an
obligation “not to extradite, deport, expel or otherwise remove a person from their territory,
where 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”.a The existence of a risk
under article 7 must be determined on a case-by-case basis. It is for the authors of a
communication to adduce evidence capable of proving that there are substantial grounds for
believing that, if the measure complained of were to be implemented, they would be
exposed to a real risk of being subjected to cruel, inhuman or degrading treatment. In order
to substantiate the universally applicable threshold of article 7, it is insufficient if an author
submits that he or she will not receive financial or other assistance from the authorities of
the receiving State. The non-availability of social assistance as such does not amount to
treatment in violation of article 7.
3.
In the present case, the authors had been granted temporary residence permits by
Italy, which allowed them to work and benefit from the general schemes for social
assistance, health care, social housing and education. They submit that, having been granted
subsidiary protection and having benefited from the reception system before, they would
now return to Italy without the right to access reception centres. However, the authors’
previous experience in Italy does not support this submission. When the second author
returned from Norway to Italy in January 2012, she was not denied access but housed again
in a reception centre in Turin where she had been before in 2008/09. There are no reasons
to assume that this would not be the case if she is deported to Italy again. Neither is there
any indication that the authors would not be able to renew their residence permits when
they return.
4.
In order to substantiate the claim that Denmark would violate their right not to be
subjected to cruel, inhuman or degrading treatment, it also does not suffice to submit, as the
authors do, that they did not (and will not) receive financial or any other assistance from the
Italian authorities in finding alternative living arrangements and work.b The same applies to
their claim that there is no effective integration scheme in Italy. The living conditions
claimed by the authors do not rise to a level that would render their deportation cruel,
inhuman or degrading. The facts in this case, in which both authors are entitled to and
capable of work, are substantially different from the facts in Jasin et al. v. Denmark, where
the Committee found a violation of article 7, because as a single mother of three small
children, whose residence permit had expired while in Italy and who was suffering from
health problems, the author would have been left upon deportation in a situation threatening
her and her children’s existence.c In contrast, in the present case, the legal status of the
authors permits them to work and their situation as a family with two healthy adults fit for
work does not warrant the same conclusion.
a
b
c
14
See the Committee’s general comment No. 31, para. 12.
See the author’s submission in para. 6.6.
Communication No. 2360/2014, Jasin et al. v. Denmark, Views adopted on 22 July 2015.
GE.16-10167
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