CCPR/C/119/D/2613/2015
adopted by the Committee. He refers to Warsame v. Canada, in which the Committee
found that the removal of the author would violate article 12 (4).40
5.9
The author claims that the scope of the protection of security of the person obliges
the State to protect individuals from foreseeable threats to life or bodily integrity from
private actors, such as the threats he suffered from the gang MS-13. The author reiterates
that as a personal target of the gang, he faces a risk of torture and/or death, and cruel,
inhuman or degrading treatment or punishment upon return to El Salvador. He claims that
this risk gives rise to a violation of article 9 of the Covenant, as the State is unable to offer
him and his family the necessary protection. He submits that the threats to his life and
bodily integrity rise to the level of a risk of irreparable harm such as to give rise to a nonrefoulement obligation, as contemplated in general comment No. 31.
5.10 In addition, the author submits that, considering the involvement of MS-13 in
kidnapping in El Salvador, he also faces a foreseeable risk of arbitrary detention.
5.11 The author acknowledges that the initial communication was not detailed as to the
nature of the alleged violations of articles 17 and 23 (1), and takes the opportunity to clarify
their substance. He claims that, if he was to be killed or arbitrarily detained owing to his
removal to El Salvador, the integrity of his family unit would be harmed. He also claims
that his removal to El Salvador creates a real risk of irreparable harm to his wife and
children by increasing substantially the already considerable risk of violence that they face
at the hands of the gang MS-13.
5.12 The author claims that a violation of articles 17 and 23 (1) can give rise to
irreparable harm. He reiterates that his family has been subjected to several death threats
and attempted attacks at the hand of the gang MS-13 since his departure in 2005 and that,
on several occasions, his wife has been asked by gang members to disclose his whereabouts
and has even been told that the only reason she and her family are still alive is that the gang
are waiting until he returns to his family.
5.13 The author claims that there is a real risk that his family will be attacked or killed by
the gang MS-13 if he is removed to El Salvador, which amounts to a risk of irreparable
harm that imposes an obligation not to remove him.
5.14 With regard to the State party’s argument that he has not sufficiently substantiated
his allegations under articles 6 and 7, the author states that he has made a prima facie case
for infringement of those articles. While acknowledging that he is not a member of a group
that is particularly vulnerable to gang violence, such as women and children, the author
claims that non-membership in such groups does not prevent a claim of personal risk. 41 He
claims that there is considerable, credible evidence that he was targeted personally prior to
leaving El Salvador and that he still remains at risk.
5.15 The author refers to the State party’s submission in which it recognized that his
family had been harassed and threatened by the gang MS-13 since he had left for Canada.
The author notes that the State party’s contention that he has not been threatened by the
gang since arriving in Canada fails to take into consideration adequately the small presence
of the gang in Canada.
5.16 As to the State party’s argument that an internal flight alternative is available in El
Salvador, the author claims that the State party relies on the 2015 pre-removal risk
assessment, in which much of the evidence he had submitted with regard to the conditions
in the country was disregarded. The author submits that the violence perpetrated by the MS13 gang embroils the entire country. He refers to a decision of the Federal Court of Canada
in which it recognized the lack of viable internal flight alternatives in El Salvador for
claims involving the gang.42 He also alleges that this is the position of the Office of the
40
41
42
10
See communication No. 1959/2010, Warsame v. Canada, Views adopted on 21 July 2011, para. 8.6.
See communication No. 1544/2007, Hamida v. Canada, Views adopted on 18 March 2010, para. 8.7.
Henriquez de Umana v. Canada (Minister of Citizenship and Immigration), 2012 FC 326 (CanLII),
para. 25.