CCPR/C/112/D/2126/2011
requires the States parties to “take steps of due diligence to avoid a threat” of torture
emanating from third parties such as illegal armed groups and other non-State actors.2 He
maintains that he faces a real risk of ill-treatment by such actors if returned to Afghanistan
because of the overall climate of violence and destitution in Afghanistan and owing to his
individual circumstances. The author makes reference to recent reports of the United
Nations Secretary-General 3 and the United Nations Assistance Mission in Afghanistan
(UNAMA),4 which cite high numbers of security incidents and numerous targeted killings
as one of the tools in a widespread and systematic campaign of intimidation against
civilians by the anti-government elements.
3.2
He also submits that, having spent 20 years outside the country, he has no relatives
or any other connections left in Afghanistan, with a total absence of a support network, and
will be exposed to attacks. He maintains that the area from which he originated, Paktya
province in the eastern part of Afghanistan near the Pakistani border, has been reported as
being increasingly outside of the reach of the central government and in the hands of the
Taliban.5 The author further refers to the jurisprudence of the European Court of Human
Rights, which in similar cases had ruled that the situation of general violence in the country
of destination led it to the conclusion that any returnee to that country would be at risk of
ill-treatment. 6 He also refers to the Court’s jurisprudence to the effect that the situation
when an asylum seeker is forced to live in the street with no resources or access to sanitary
facilities and without any means of providing for his essential needs is incompatible with
article 3 of the Convention for the Protection of Human Rights and Fundamental
Freedoms.7 The author notes that the Russian courts based their decisions on the conclusion
that the author had left Afghanistan for the Soviet Union not because of fear of persecution,
but to study. While that might have been true in 1987, with the violent fall of the Najibullah
regime in 1992 and the rise of fundamentalist Islamists to power, he maintains that he has
become a refugee sur place as it is no longer possible for him to return to his homeland.
3.3
The author further submits that, if he were returned to Afghanistan, his family life
would be destroyed and annihilated, since his daughter and spouse would not be able to go
with him, as the situation of general violence there amounts to a violation of article 7 of the
Covenant. Moreover, they would be specifically targeted as non-Muslim women who do
not speak the language and do not know the local customs, including religious customs.
The author therefore submits that if he were deported to Afghanistan his rights under
article 17 of the Covenant would be violated.
The State party’s observations on admissibility
4.1
On 16 April 2012, the State party submits that the author had arrived in the territory
of the Union of Soviet Socialist Republics (Soviet Union) in 1987 under an international
agreement to study in a medical academy. Between 1989 and 1997 he studied in the
2
3
4
5
6
7
4
The author refers to communication No. 1051/2002, Ahani v. Canada, Views of 29 March 2004,
para. 10.7.
The author refers to the report of the Secretary-General on the situation in Afghanistan and its
implications for international peace and security (A/66/369–S/2011/590), para. 51.
The author refers to the UNAMA Afghanistan Midyear report on Protection of Civilians in Armed
Conflict (Kabul, July 2011) p. 19.
The author refers to the UNHCR Eligibility Guidelines for Assessing the International Protection
Needs of Asylum-Seekers from Afghanistan (2007), p. 62.
The author refers to the judgment of the European Court of Human Rights in Sufi and Elmi v. the
United Kingdom, Applications No. 8319/07 and 11449/07, judgment of 28 June 2011, para. 293.
The author refers to the judgment of the European Court of Human Rights in M.S.S. v. Belgium and
Greece, Application no. 30696/09, judgment of 21 January 2011, para. 263.