CRPD/C/24/D/49/2018
Convention for the Protection of Human Rights and Fundamental Freedoms (European
Convention on Human Rights). The State party notes that the author is not in a situation
comparable to that of the applicant in D. v. United Kingdom. Furthermore, the information
cited in support of the claim of a lack of access to health care and hospitals concerns Helmand
Province only.
4.21 Finally, the State party observes that the communication contains no support for the
allegations that the author will be perceived as having left Islam or as guilty of an honour
crime because of his disability.
Author’s comments on the State party’s submission
5.1
In his comments dated 28 February 2019, the author claims that the Committee’s
decision in O.O.J. et al. v. Sweden does not support the State party’s observation of the main
rule that a State party’s responsibility for Convention obligations is limited to its territory.
Indeed, the Committee considered in that case that the removal by a State party of an
individual to a jurisdiction where he or she would risk facing violations of the Convention
could, under certain circumstances, engage the responsibility of the removing State under the
Convention, which has no territorial restriction clause.9
5.2
The author argues that article 15 of the Convention should be interpreted as allowing
non-refoulement claims, given that persons with disabilities constitute a particularly
vulnerable group. He asserts that the exploitation, violence, abuse and lack of health care that
he would face in Afghanistan amount to torture in the sense of said article.
5.3
The author claims that his disability was assessed separately from his claimed need of
international protection in the asylum procedure. He reiterates that persons with disabilities
in Afghanistan are particularly vulnerable and that the alleged violations are highly dependent
on his disability. In response to the State party’s observation that certain claims were not
raised in the domestic proceedings, he states that the Migration Agency was aware of his
disability at the time of the initial assessment, but that the courts never assessed it and that it
should therefore be the subject of a new review. The author concludes that the elements
identified by the State party are therefore admissible.
5.4
Responding to the observation that his claims are insufficiently substantiated, the
author states that he is unaware of a requirement of sufficient substantiation but that, in any
case, the State party has not specified how he has failed to meet this standard. He requests
the Committee to consider the grounds invoked cumulatively in case they are not individually
found to amount to a breach of his rights.
B.
Issues and proceedings before the Committee
6.1
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.
6.2 The Committee has ascertained, 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.
6.3
The Committee notes the State party’s submission that the communication should be
declared inadmissible as being insufficiently substantiated under article 2 (e) of the Optional
Protocol; that the part of the communication relating to the author’s claims under articles 16
and 26 and of the Convention should be declared inadmissible ratione materiae and ratione
loci under article 1 of the Optional Protocol; that the Committee should consider whether the
author’s claims under article 15 of the Convention are inadmissible ratione materiae; and
that certain elements of the communication are also inadmissible ratione materiae as
unrelated to his disability, or because domestic remedies were not exhausted.
9
O.O.J. et al. v. Sweden (CRPD/C/18/D/28/2015), para. 10.3.
7