CCPR/C/126/D/2685/2015
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any claims contained in a communication, the Committee must
decide, in accordance with rule 97 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 authors’ claim that they have exhausted all effective
domestic remedies available to them. In the absence of any objection by the State party in
that connection, the Committee considers that it is not precluded from examining the
communication under article 5 (2) (b) of the Optional Protocol.
8.4
The Committee takes note of the authors’ claim that the State party, by forcibly
returning the authors and their children to Afghanistan, would violate their rights under
articles 6, 7, 17 and 23 of the Covenant.
8.5
The Committee first notes that the authors have alleged a violation of articles 17 and
23 of the Covenant but have not provided any information on or evidence or explanation of
how their rights under these articles would be violated by the State party through their
removal to Afghanistan. The Committee therefore concludes that this part of the
communication is insufficiently substantiated, and declares it inadmissible pursuant to article
2 of the Optional Protocol.
8.6
The Committee notes the State party’s challenge to the admissibility of the
communication on the grounds that the authors’ claim under articles 6 and 7 of the Covenant
is unsubstantiated. It considers, however, that, for the purpose of admissibility, the authors
have adequately explained the reasons for which they fear that their forcible return to
Afghanistan would result in a risk of treatment contrary to articles 6 and 7 of the Covenant.
The Committee therefore declares the communication admissible insofar as it raises issues
under articles 6 and 7, and proceeds to the consideration of the merits.
Consideration of the merits
9.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, as provided for under article 5 (1) of the Optional Protocol.
9.2
The Committee notes the authors’ claim that deporting them and their children to
Afghanistan would expose them to a risk of irreparable harm, in violation of articles 6 and 7
of the Covenant. The Committee also notes the authors’ argument that F.M. would face
criminal prosecution for extramarital sexual relations and running away from home, and that
R.M. would face criminal prosecution for adultery and would be subject to blood revenge
from his wife’s family. It further notes the authors’ submission that their case has been
publicized by the Danish media and is also probably known to the Afghan media. The
Committee also notes the State party’s admission based on different reports that affairs
outside marriage do occur in Afghanistan, albeit very rarely, and that marriages in
Afghanistan are typically arranged following an agreement between two families.
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, 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 are substantial grounds for believing that there is a real risk of
irreparable harm such as that contemplated by articles 6 and 7 of the Covenant (para. 12).
The Committee also indicated that the risk must be personal 35 and that the threshold for
providing substantial grounds to establish that a real risk of irreparable harm exists was
35
12
See K. v. Denmark (CCPR/C/114/D/2393/2014), para. 7.3, P.T. v. Denmark
(CCPR/C/113/D/2272/2013), para. 7.2, and X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2.