CCPR/C/119/D/2681/2015
6.3
The Committee notes the authors’ claim that they have exhausted all effective
domestic remedies available to them. In the absence of any contrary information by the
State party in that connection, the Committee considers that the requirements of article 5 (2)
(b) of the Optional Protocol have been met.
6.4
The Committee notes the State party’s challenge to the admissibility of the
communication on the grounds that the authors’ claim under article 7 of the Covenant is
unsubstantiated. However, the Committee considers that, in the light of its past
jurisprudence in cases pertaining to the Dublin II Regulation,19 the real difficulties
encountered by the authors when they had previously lived in Italy, the very young age of
their four children and the information before the Committee on the limited nature of the
assurances issued by the authorities in Italy, it cannot regard the communication as clearly
lacking in substance. Accordingly, the Committee declares the communication admissible
insofar as it raises issues under article 7 of the Covenant, and proceeds to its consideration
on the merits.
Consideration of the merits
7.1
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.
7.2
The Committee notes the authors’ claim that deporting them and their four children
to Italy, based on the Dublin Regulation principle of first country of asylum, would expose
them to a risk of irreparable harm in violation of article 7 of the Covenant. The authors base
their arguments, inter alia, on the actual treatment they received after they had been granted
a residence permit in Italy and on the general conditions of reception for asylum seekers
and beneficiaries of international protect in Italy, as mentioned in various reports. The
Committee notes the authors’ argument they would face homelessness, destitution and
limited access to health care, as demonstrated by their experience after they had been
granted subsidiary protection in January 2009. The Committee further notes the authors’
submission that, since they had already benefitted from the reception system when they first
arrived in Italy, and as they had already been granted a form of protection, they would have
no access to accommodation in the reception facilities.20
7.3
The Committee recalls paragraph 12 its general comment No. 31 (2004) on the
nature of the general legal obligation imposed on States parties to the Covenant, 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 article 7 of the Covenant, which
prohibits cruel, inhuman or degrading treatment. The Committee has also indicated that the
risk must be personal and that the threshold for providing substantial grounds to establish
that a real risk of irreparable harm exists is high. 21 The Committee further recalls its
19
See, for example, Warda Osman Jasin et al. v. Denmark (footnote 16 above); communications
No. 2409/2014, Abdilafir Abubakar Ali et al v. Denmark, Views adopted on 29 March 2016; and No
2608/2015, R.A.A. and Z. M. v. Denmark, Views adopted on 28 October 2016.
20
See Dublin II Regulation: National report on Italy (see footnote 7 above); “Country report: Italy”
(see footnote 6 above), p. 37;“Country Reports on Human Rights Practices for 2012: Italy” (see
footnote 7 above); Reception conditions in Italy (see footnote 6 above), pp. 4-5; and Protection
Interrupted (see footnote 7 above), pp. 152 and 161.
21
See communications No. 2007/2010, X v. Denmark, Views adopted on 26 March 2014, para. 9.2; No.
692/1996, A.R.J. v. Australia, Views adopted on 28 July 1997, para. 6.6; and No. 1833/2008, X. v.
Sweden, Views adopted on 1 November 2011, para. 5.18.
10