CCPR/C/131/D/3069/2017
these elements were not adequately examined and assessed during his asylum proceedings.
He also adds that since he fears his parents, it is difficult for him to request a tazkira, an
identity document necessary for life in Afghanistan.
3.4
The author submits that he has exhausted domestic remedies.
State party’s observations on admissibility and the merits
4.1
In a note verbale of 11 June 2018, the State party submitted its observations on the
admissibility and merits of the communication.
4.2
In regard to the admissibility of the communication under article 5 (2) (a) of the
Optional Protocol and rule 99 (e) of the Committee’s rules of procedure, the State party
submits that it is not aware whether the present communication is being or has been examined
under another procedure of international investigation or settlement.
4.3
The State party notes it does not contest the admissibility in regard to article 5 (2) (b)
of the Optional Protocol and rule 99 (f) of the Committee’s rules of procedure.
4.4
The State party maintains that the author’s assertion that he runs the risk of being
treated in a manner that would amount to a breach of the Covenant failed to attain the basic
level of substantiation required for the purpose of admissibility. The communication is thus
inadmissible pursuant to article 3 of the Optional Protocol and rule 99 (b) of the Committee’s
rules of procedure.
4.5
In regard to the alleged violation of articles 6 and 7 of the Covenant, the State party
notes that a forced return to the country of origin may constitute a breach of articles 6 or 7 of
the Covenant where there are substantial grounds for believing that there is a real risk of
irreparable harm, but that the real risk must be the necessary and foreseeable consequence of
forced return and be personal.18 The State party also notes that considerable weight should be
given to the assessment conducted by the domestic authorities, given that it is generally for
those authorities to directly review or evaluate facts and evidence in order to determine
whether a real risk of irreparable harm exists, unless it is found that the evaluation was clearly
arbitrary or amounted to a manifest error or denial of justice. The State party emphasizes that
that approach is based on the acceptance by the Committee of the comparative advantage that
domestic authorities have in making factual findings owing to their direct access to oral
testimonies and other materials presented in legal proceedings at the national level. The State
party adds that several provisions in the Aliens Act reflect the same principles as those set
out in articles 6 (1) and 7 of the Covenant. The Swedish migration authorities therefore apply
the same kind of test when considering an application for asylum under the Aliens Act as the
Committee applies when examining a complaint under the Covenant.
4.6
As for the general human rights situation in Afghanistan, the State party notes that
Afghanistan is a party to the Covenant, as well as to the Convention against Torture and
Other Cruel and Inhuman or Degrading Treatment or Punishment. The State party also notes
that, whereas it recognizes that the security situation of Afghanistan in recent years has
deteriorated, there is a great variation in the intensity of the conflict in the different regions
of the country and the level of indiscriminate violence in the country as a whole is not such
that there is a general need to protect all asylum seekers from that country. 19 The State party
18
19
See Human Rights Committee, general comment No. 31 (2004), para.12. The State party submits that
the Committee’s jurisprudence indicates a high threshold for substantial grounds for establishing 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: see X v.
Norway (CCPR/C/115/D/2474/2014), para. 7.3. The State party also claims that the burden of proof
rests with the author, who is required to establish that a real risk of treatment contrary to articles 6 or
7 would be a foreseeable consequence of his expulsion: see Hamida v. Canada
(CCPR/C/98/D/1544/2007), para. 8.7; A.R.J. v. Australia (CCPR/C/60/D/692/1996), paras. 6.8 and
6.14; Dauphin v. Canada (CCPR/C/96/D/1792/2008), para. 7.4; and A.P.J. v. Denmark
(CCPR/C/119/D/2253/2013), para. 9.6.
The State party also refers to a number of documents of the United Nations, international
organizations, Governments and civil society organizations with regard to the human rights situation
in Afghanistan, including the United Nations Assistance Mission in Afghanistan, “Midyear update on
5