CCPR/C/124/D/2734/2016
the evidence before them.28 In the present case, no new information has been adduced that
was not available when the Refugee Appeals Board made its decision.
Author’s comments on the State party’s additional submission
7.
On 10 September 2018, the author reiterated her observations and referred to the
Committee’s Views cited by the State party (see para. 6.2), arguing that the State party’s
analysis of this jurisprudence was not thorough, and that it should rather be interpreted in
her favour.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under
the Optional Protocol.
8.2
The Committee has ascertained, as required by article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of
international investigation or settlement.
8.3
The Committee notes the author’s claim that she has exhausted all effective
domestic remedies available to her, and that the State party has not disputed this claim.
Accordingly, the Committee considers that it is not precluded by article 5 (2) (b) of the
Optional Protocol from considering the present communication.
8.4
The Committee notes the State party’s challenge to the admissibility of the
communication on the grounds that the author’s claim under article 7 of the Covenant is
unsubstantiated. However, the Committee considers that, for the purpose of admissibility,
the author has adequately explained the reasons for which she fears that her forcible return
to Italy would result in a risk of treatment in violation of article 7 of the Covenant. As no
other obstacles to admissibility exist, the Committee declares the communication
admissible and proceeds with its consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.
9.2
The Committee notes the author’s claim that deporting her and her newborn child to
Italy, pursuant to the Dublin III Regulation principle of first country of asylum, would
expose them to a risk of irreparable harm, in violation of article 7 of the Covenant.
9.3
The Committee recalls its general comment No. 31 (2004) on the nature of the
general legal obligation imposed on States parties to the Covenant (para. 12), in which it
referred to the obligation of States parties not to extradite, deport, expel or otherwise
remove a person from their territory when there were substantial grounds for believing that
there was a real risk of irreparable harm, such as that contemplated by article 7 of the
Covenant. The Committee has also indicated that the risk must be personal 29 and that there
is a high threshold for providing substantial grounds to establish that a real risk of
irreparable harm exists.30 Thus, all relevant facts and circumstances must be considered,
including the general human rights situation in the author’s country of origin. 31 The
Committee recalls that it is generally for the organs of States parties to examine the facts
and evidence of the case in order to determine whether such a risk exists, 32 unless it can be
28
29
30
31
32
GE.19-02298
X v. Sweden (application No. 36417/16), judgment of 9 January 2018, paras. 47–51.
K. v. Denmark, para. 7.3; P.T. v. Denmark, para. 7.2; and X. v. Denmark, para. 9.2.
X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18.
Ibid. See also, X. v. Denmark, para. 9.2.
Pillai et al. v. Canada (CCPR/C/101/D/1763/2008), paras. 11.2 and 11.4; and Z.H. v. Australia
(CCPR/C/107/D/1957/2010), para. 9.3.
9