CCPR/C/119/D/2613/2015
8.7
The Committee recalls its general comment No. 31, in which it refers to the
obligation of States parties not to extradite, deport, expel or otherwise remove a person
from their territory where 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. It also
recalls that the risk must be personal and that there is a high threshold for providing
substantial grounds to establish that a real risk of irreparable harm exists. Therefore, all
relevant facts and circumstances must be considered, including the general human rights
situation in the author’s country of origin.59 The Committee further recalls its jurisprudence
that considerable weight should be given to the assessment conducted by the State party,
and that it is generally for the organs of the States parties to the Covenant to review and
evaluate facts and evidence in order to determine whether such risk exists, unless it is found
that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.
8.8 In that connection, the Committee notes the direct and repeated acts of violence by
the gang MS-13 suffered by the author and his close relatives, which are not disputed by the
State party. These include the murder of the author’s brother; the author’s submission that
he was shot in the knee by an MS-13 gang member in July 1993 and that, following the
release of the convicted MS-13 gang members, he was attacked in November 2003 and
March 2004; and that, during those attacks, two of his friends were murdered. The
Committee further notes the author’s contention that, in January 2005, he and his brother
were threatened with a knife by a member of MS-13 and that the gang has made repeated
threats against his wife and daughters, including by firing shots at their house, and that
those threats have caused one daughter to move and the other to be home schooled.
8.9
The Committee notes that, throughout the asylum procedure, the State party did not
accord weight to various aspects of the information provided by the author, including: (a)
the affidavit of an expert on gang violence in Central America, which concluded that the
author would be “at extraordinarily high risk of egregious physical harm and death if
returned” and that El Salvador would be unable to provide him with due protection; 60 (b)
the statement of the Salvadoran policeman responsible for protecting the author’s family
that the State did not have the capacity to provide him and his family with the protection
they need;61 (c) the submission that the author’s wife had been told by the MS-13 gang that
the only reason that her daughters and herself were alive is because they knew that one day
the author would return to them; 62 and (d) the medical certificate, according to which the
author suffered from chronic post-traumatic stress disorder and that he would be highly
vulnerable to psychological collapse in case of return to El Salvador.
8.10 Moreover, while noting the State party’s argument that reports indicate that gang
violence mainly affects small family business, public transportation services and vulnerable
groups, such as women and children, and that the author does not fall into any of those
categories, the Committee also notes that the State party did not give adequate weight to
other elements contained in the reports provided by the author in support of his pre-removal
risk assessment application, according to which violence from gangs particularly affects
victims and witnesses of crimes and that El Salvador would be unable to provide due
protection to them.63 The Committee further notes that, taking into account the profile of
the author, this information is of particular relevance. In that regard, the Committee notes
the numerous continuing public reports available regarding the extent of gang violence in
El Salvador in general and against witnesses in particular. 64 It notes the State party’s
59
60
61
62
63
64
See X v. Denmark (footnote 30 above), para. 9.2.
See supplemental affidavit of Thomas Boerman, 13 October 2011, para. 28 (included in support of the
pre-removal risk assessment application, 19 March 2012).
See statement of the policeman responsible for the case, footnote 18 above.
See footnote 6 above.
See, for example, L.P. Fariña et. al., No Place to Hide: Gang, State and Clandestine Violence in El
Salvador (International Human Rights Clinic and Harvard Law School, 2010), pp. 160-161; and
Immigration and Refugee Board of Canada, response to information request, 14 July 2014, p. 6
(“gang intimidation and violence against witnesses contributed to a climate of impunity from criminal
prosecution”).
See, for example, footnote 44 above, pp. 24-25; “El Salvador Human Rights Report, 2015” (United
States State Department), p. 9; N. Lakhani, “El Salvador sees most deadly month in 10 years as
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