CCPR/C/114/D/2428/2014
as similar. Furthermore the Court’s reasoning regarding article 3 of the European
Convention on Human Rights can be regarded as corresponding to article 7 of the
Covenant. According to the author, the Tarakhel decision seems to indicate that the
assumption premise laid out in the Hussein decision can no longer be regarded as sufficient.
On the contrary, individual guarantees, especially to secure returning children from
destitution or harsh accommodation conditions, are required according to the Court.
5.8
The author reiterates that the fact that she might be able to renew her residence
permit in Italy does not exclude the risk she or her children could be faced with harsh living
conditions, homelessness or destitution in Italy, as a single mother with two minor children
without access to basic shelter, sanitation facilities, food or sufficient medical care, in
breach of article 7 of the Covenant. Finally, the author adds that returning families who
have already been granted international protection might face even greater difficulties in
finding shelter, access to sanitation facilities or food in Italy than returning asylum seekers,
as the latter enjoy a minimum of protection within the Dublin Regulation system and may
have access to European Union-supported reception facilities.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Human Rights
Committee must, in accordance with article 93, of its rules of procedure, decide whether or
not it is admissible under the Optional Protocol to the Covenant.
6.2
As required under article 5, paragraph 2 (a), of the Optional Protocol, the Committee
has ascertained that the same matter is not being examined under another procedure of
international investigation or settlement.
6.3
The Committee notes the State party’s challenge to the admissibility of the
communication on the ground that the author has failed to exhaust domestic remedies, as
she did not invoke claims related to a possible violation of article 7 of the Covenant, in
relation to her return to Italy, before domestic authorities. The Committee observes that her
claim before the refugee appeals board was that “she feared being killed by Al-Shabaab in
the event that she were returned to Somalia, because she had run away from them”. In
addition, the Committee observes that, in the author’s application to appeal the refugee
appeals board decision of 15 November 2013, she reiterated that she faced persecution by
Al-Shabaab in Mogadishu, and thus would be at real risk of persecution or abuse in the
event that she were returned to Somalia (paras. 2.9 and 4.2). Once the decision to return her
to Somalia became enforceable and the police contacted her for deportation arrangements,
the author raised the preference to be returned to Italy on 10 December 2013 (para. 4.1),
which she confirmed on 2 June 2014 (para. 4.3). On 6 March 2014, the author sought that
proceedings be reopened with respect to her deportation to Somalia, which was rejected on
16 June 2014. In this application, the author did not raise concerns with respect to living
conditions in Italy.
6.4
Immediately after, on 17 June 2014, the author brought the case before the
Committee, raising allegations under article 7 of the Covenant with respect to living
conditions in Italy, which were never formally brought as an asylum ground per se before
the Danish authorities, even though the author was legally represented during domestic
proceedings. The author has not challenged the availability or effectiveness of such
recourse before the State party’s jurisdictions. Consequently, the latter were deprived of
the opportunity to examine such claims, which are at the heart of the author’s
communication before the Committee. Accordingly, the Committee finds that the author
has failed to exhaust domestic remedies.
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