CCPR/C/114/D/2360/2014
refoulement obligations of State parties under the Covenant: placing individuals who should
not be deported to their countries of origin under intolerable living conditions in the country
of refuge, may compel them to return despite the real risk of serious human rights
violations awaiting them in their home State.
3.
Although we are of the view that the very harsh conditions experienced by the
author and her family in Italy may amount to a violation of a number of rights under the
Covenant, they do not, in themselves, cross the high threshold for non-refoulement under
the Covenant, namely, a real risk of a serious violation of the most basic rights under the
Covenant, such as deprivation of life or torture. g Hence, had the author been an Italian
national, or even a foreign national whose basic rights were not at risk of being seriously
violated at the country of origin, we would not consider Denmark to be under a legal
obligation not to deport her and her family to Italy. In such a case, Italy would be excepted
to fulfil its obligations under the Covenant towards the deported individuals upon their
arrival there, pursuant to the Dublin II Regulation, and Denmark would not be required to
continue to host them in its territory for an indefinite period of time.
4.
Still, in the particular circumstances of the case, the exceptional combination of the
following factors: (i) the unclear legal situation in Italy of the author and her children,
following the expiration of her residence permit; (ii) the extreme vulnerability of the author
and her family given their health situation and age; (iii) the demonstrated failure of the
Italian social welfare system to address the most basic needs of the author and her children,
notwithstanding their entitlement to subsidiary protection; and (iv) the lack of adequate
assurances for the provision of such protection following the contemplated deportation —
cast serious doubt as to whether Italy can be effectively regarded as a “safe country” for the
specific author and her children. As a result, deporting her back to a country, which does
not offer her a minimum level of social protection commensurate with her protected status,
without any other resettlement alternatives available to her, may eventually compel the
author and her family to return to her country of origin — Somalia — despite the real risk
of torture that awaits her there and notwithstanding her right to non-refoulement under the
Covenant.
5.
Since the Danish immigration did not consider the effect of their decision to deport
the author and her author on their actual ability to effectively exercise the right to nonrefoulement under the Covenant, we agree with the Committee that deporting the author to
Italy would violated Denmark obligations under article 7 of the Covenant, and that
Denmark is under an obligation to reconsider the author’s claim for asylum.
g
See the Committee’s general comment 31(2004) on the nature of the general legal obligation imposed
on States parties to the Covenant, para. 12.
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