CCPR/C/120/D/2601/2015 Annex Individual opinion of Committee members Yuval Shany and Christof Heynes (dissenting) 1. We regret that we are unable to join the majority of the Committee in finding that, in deciding to deport the author to Iraq, Denmark would, if it implemented the decision, violate its obligations under articles 6 (1) and 7 of the Covenant. 2. In paragraph 9.2 of its Views, the Committee recalls that “it is generally for the organs of States parties to the Covenant to examine the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the assessment was arbitrary or amounted to a denial of justice”. Despite this, the majority of the Committee rejected the factual conclusion of the Danish Immigration Service and the Refugee Appeals Board that the author failed to establish grounds for asylum because his individual circumstances did not give rise to a risk of serious harm, and held, in paragraph 9.3, that due to a combination of personal risk factors and the general situation in Baghdad, the author’s deportation would amount to a violation of articles 6 (1) and 7. 3. By engaging in what appears to be an independent risk assessment, we are of the view that the majority of the Committee failed to properly apply the review standards it has itself identified in paragraph 9.2 and did not follow the long-held tradition, according to which the Committee does not serve as “a fourth instance competent to re-evaluate findings of fact”1. 4. In past cases in which the decision of State organs to deport an individual was found by the Committee to run contrary to the Covenant, the Committee sought to base its position on inadequacies in the domestic decision-making process, such as failure to properly take into account available evidence or the specific rights of the author under the Covenant,2 serious procedural flaws in the conduct of the domestic review proceedings, 3 or the inability of the State party to provide a reasonable justification for the decision.4 In the present case, however, it has not been shown that any piece of evidence was ignored during the asylum proceedings, no inadequacy in the domestic decision-making process has been identified and detailed and, in our view, persuasive justifications were provided by the Danish authorities for the conclusion that the deportation of the author to Iraq would not place him at a real risk of irreparable harm (see, e.g., paras. 4.2-4.11). 5. It thus appears that the majority of the Committee simply disagreed with the risk assessment of the Danish authorities, notwithstanding that they reached their conclusion after a serious fact-finding process which was procedurally adequate and, in our view, far more robust than that which the Committee was able to conduct. We note in this regard that the statement by the majority in paragraph 9.3, according to which the State has not contested the risks as presented by the author, is contradicted by the record as set out in paragraphs 4.5 and 4.6. We are therefore of the view that the majority erred in rejecting the assessment made by the Danish authorities. 6. Furthermore, we believe that the personal risk factors and general conditions in Iraq identified by the majority in paragraph 9.3 do not establish a real risk of irreparable harm which could give rise to the State party’s non-refoulement obligation under the Covenant.5 1 2 3 4 5 See, e.g., communication No. 1138/2002, Arenz and others v. Germany, Views adopted on 24 March 2004, para. 8.6. See, e.g., communication No. 1544/2007, Hamida v. Canada, Views adopted on 18 March 2010, paras. 8.4-8.6. See, e.g., communication No. 1908/2009, X. v. Republic of Korea, Views adopted on 25 March 2014, para. 11.5. See, e.g., communication No. 1222/2003, Byahuranga v. Denmark, Views adopted on 1 November 2004, paras. 11.3-11.4. General comment 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, para. 12. 13