CCPR/C/124/D/2734/2016 Annex II [Original: French] Individual opinion (dissenting) of Mr. Olivier de Frouville 1. These Views are in line with the now settled jurisprudence of the Human Rights Committee on the return, from one European Union country to another, of persons seeking refugee status or granted subsidiary protection. All such cases submitted to the Committee concern one State party: Denmark. In most cases, the country of return is Italy. The Committee has set out a number of principles applicable to these cases, based on its Views in the Jasin v. Denmark case, adopted on 22 July 2015.1 These principles are accepted by most Committee members, but their application to specific cases still divides the members. 2. Consistent with its jurisprudence on removal from a territory, the Committee gives considerable weight to the assessment by the national authorities of a real and personal risk of harm as envisaged in articles 6 and 7 of the Covenant. The Committee considers that it is generally for the organs of the State to evaluate the facts and evidence in order to determine whether such a risk exists, unless that evaluation is clearly arbitrary or constitutes a denial of justice. 3. In addition, the Committee has identified four factors for such evaluations. The first factor relates to the situation in the country of return as regards the shelter and assistance given to asylum seekers and persons granted subsidiary protection. The second factor relates to such persons’ previous experience in the country of return and, consequently, the treatment they can expect to receive upon returning to the country. The third factor relates to the author’s degree of vulnerability at the time of the Committee’s assessment of the communication; this takes account of any responsibility the author may have for minor children, whose best interests must be given due consideration in the decision. The fourth and last factor is whether or not the State party has sought assurances from the receiving State that the persons concerned will be taken care of in conditions that are compatible with their situation, and also, where the authors are accompanied by minor children, that they will be received in conditions appropriate to the age of the children and the family’s vulnerability, without exposing them to the risk of indirect refoulement. 4. In cases where the Committee concludes that the assessment by the national authorities is clearly arbitrary, it finds that there would be a violation if the State were to return the authors without seeking the assurances specified by the Committee in the grounds for its Views. In other words, the State could always avoid this potential violation by requesting tailor-made assurances that meet the conditions set by the Committee. Regrettably, it should be noted that Denmark has never made any such request in any of the cases referred to the Committee. 5. I believe that the Committee has not correctly applied its jurisprudence to this particular case. With regard to the conditions in the country, the Committee takes note of the various reports submitted by the author, and referred to in paragraph 3.2, which show that persons returning to Italy who have already received some form of protection are not entitled to accommodation in reception facilities and that there is no statutory procedure for identifying vulnerable persons. More recent reports show that there have been no improvements in this respect and that, on the contrary, systematic problems persist. 2 The author’s previous experience is, unfortunately, comparable to that in other cases that the Committee has had to consider: on receipt of her residence permit, the author was informed that she could no longer remain in the reception facilities, even though she was still a minor. Between 2009 and 2015, therefore, she was in an extremely vulnerable position, sleeping rough or in shelters and occasionally working illegally. On a personal level, the author 1 2 14 Jasin v. Denmark (CCPR/C/114/D/2360/2014). See, inter alia, the Swiss Refugee Council (OSAR) and the Danish Refugee Council, “Is mutual trust enough? The situation of persons with special reception needs upon return to Italy”, 9 February 2017. GE.19-02298