CCPR/C/127/D/3070/2017
apostasy and may in some cases carry the death penalty or imprisonment (footnote 45).
Other readily available sources, according to which the possibility of the imposition of the
death penalty for apostasy is mostly used to frighten high-profile offenders and which
indicate there is no record of executions for apostasy in Afghanistan, even under the
Taliban regime, are not addressed.1
9.
Even if the death penalty for apostasy may in extreme cases still be imposed in
Afghanistan, we question how real the risk is that the author specifically would be exposed
to it. Although the author had legal representation before the Committee, no attempt was
made to explain to the Committee to what extent the author, who left Afghanistan when he
was 5 years of age and is a member of the Hazara ethnic group, might be at particular risk
on those grounds and to allow the State to respond to those claims.
10.
The foregoing does not appear to even come close to meeting the legal standard
referenced by the majority, at least as far as the possible punishment for apostasy is
concerned.
11.
It should be highlighted that the Migration Court did not ignore the author’s
religious claims. The Court considered the written submissions on that point in some detail,
although it eventually concluded that such a claim, being general and not expressing any
deeper personal reflection, did not warrant a reopening of the oral proceedings (para. 4.11).
Surely, the decision whether such additional oral hearings are due in a particular case
should be regarded as part of the domestic procedures, which are to be left intact, unless
there is good reason to reject them.
12.
In paragraph 9.6 of the Views, the majority explains their view of why the domestic
procedures should be rejected, placing strong emphasis on the fact that “the migration
authorities … assessed each of the grounds for protection that the author alleged separately
and did not assess the fact that the combined grounds aggravated the risk faced by the
author, even though he was facing intersecting forms of vulnerability”. His claims of
mental health issues are presented as an example of grounds that were not considered
collectively with the others. It is not clear however why the migration authorities should
have considered the collective impact of grounds, the factual basis of which they have
rejected through a thorough process or those that were raised only at a late stage in an
unpersuasive manner. The author did not complain about the lack of such a collective
assessment, and so the State did not have an opportunity to respond to the complaint.
13.
In our view, the claims of violations under articles 6 and 7 should have been found
inadmissible because of non-substantiation.
1
16
See http://dpw.law.cornell.edu/country-search-post.cfm?country=Afghanistan.
GE.20-00739
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