Decision on merits; Subjects: CIVIL AND POLITICAL RIGHTS, DENMARK; [CCPR: UNO-Pakt II, Internationaler Pakt über bürgerliche und politische Rechte; Pacte international relatif aux droits civils et politiques; Patto II]
Volltext (verifizierbarer Originaltext)
GE.22-11839(E)
Human Rights Committee
Views adopted by the Committee under article 5 (4) of
the Optional Protocol, concerning communication No.
2651/2015*, **, ***
Communication submitted by:
A.M.F. and A.M. (represented by counsel,
Daniel Nørrung)
Alleged victims:
The author and her son
State party:
Denmark
Date of communication:
25 September 2015 (initial submission)
Document references:
Decision taken pursuant to rule 92 of the
Committee’s rules of procedure, transmitted to
the State party on 28 September 2015 (not issued
in document form)
Date of adoption of Views:
22 July 2021
Subject matter:
Deportation to Ethiopia
Procedural issues:
Level of substantiation of claims; exhaustion of
domestic remedies
Substantive issues:
Non-refoulement; torture; right to life
Articles of the Covenant:
6, 7 and 24 (1)
Articles of the Optional Protocol:
2 and 5 (2) (b)
1.1
The author of the communication is A.M.F., an Ethiopian national born in 1987. She
submits the communication on behalf of herself and her son, A.M., born in 2010. She claims
that the State party has violated their rights under articles 6, 7 and 24 (1) of the Covenant.
The Optional Protocol entered into force for the State party on 23 March 1976. The author
and her son are represented by counsel.
1.2
On 28 September 2015, pursuant to rule 94 of its rules of procedure, the Committee,
acting through its Special Rapporteur on new communications and interim measures, decided
not to issue a request for interim measures.
* Adopted by the Committee at its 132nd session (28 June–23 July 2021).
** The following members of the Committee participated in the examination of the communication:
Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Yadh Ben Achour, Arif Bulkan,
Mahjoub El Haiba, Furuya Shuichi, Carlos Gómez Martínez, Duncan Laki Muhumuza, Photini
Pazartzis, Hernán Quezada Cabrera, Vasilka Sancin, José Manuel Santos Pais, Soh Changrok,
Kobauyah Tchamdja Kpatcha, Hélène Tigroudja and Gentian Zyberi.
*** A joint opinion by Committee members Furuya Shuichi, Photini Pazartzis and Vasilka Sancin
(dissenting) is annexed to the present Views.
United Nations
CCPR/C/132/D/2651/2015
International Covenant on
Civil and Political Rights
Distr.: General
28 July 2022
Original: English
CCPR/C/132/D/2651/2015
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Facts as submitted by the author
2.1
On 3 September 2013, the author came to Denmark with her son and applied for
asylum. She is an ethnic Oromo from Ethiopia and the daughter of an outspoken leader of
the Oromo Liberation Front (OLF), who died in prison in 2002 or 2003 after being tortured.
She escaped with her sister to the Sudan three weeks after his death. Her other siblings and
her mother later also fled to the Sudan, where the family were recognized as refugees by the
Office of the United Nations High Commissioner for Refugees (UNHCR). The author
participated in an OLF fraction in the Sudan through practical assignments and cultural
events, but the Sudanese police interrupted these meetings on three occasions. She therefore
fled to Europe in 2006 and came to Italy, where she was granted refugee status. In Italy, she
mostly lived on the streets, where she contracted tuberculosis and was sexually abused. She
conceived her son as a result of this abuse and gave birth to him after escaping to Norway.
However, she was returned to Italy, where she continued to live on the streets for another two
years before travelling to Denmark in 2013.
2.2
When she arrived in Denmark, the author was initially asked to return to Italy in
accordance with Regulation No. 604/2013 of the European Parliament and of the Council of
26 June 2013 establishing the criteria and mechanisms for determining the member State
responsible for examining an application for international protection lodged in one of the
member States by a third-country national or a stateless person (Dublin Regulation). This
request was repealed when it became known that she already had refugee status there. In
November 2013, she was asked again to return to Italy. In April 2015, following the
introduction of a new practice, her removal was cancelled and she was informed that her
asylum application would be examined on the merits. On 14 July 2015, the Danish
Immigration Service rejected her application, firstly because she had not been persecuted in
Ethiopia and secondly because if her statements were accepted, then Italy should serve as her
country of asylum. The Danish Immigration Service therefore decided that she should be
removed to Italy.
2.3
In a decision on appeal, dated 4 September 2015, the Refugee Appeals Board accepted
the credibility of the author’s account. However, the Board rejected her appeal because it did
not accept that she would be exposed to a concrete and individual risk if returned, as she had
stayed in Ethiopia for three weeks following her father’s death without being persecuted.
Moreover, several of her family members had stayed there even longer, including her mother,
who had stayed in the country until 2010, about four years after the author’s activities in the
Sudan had ceased. Furthermore, it did not appear that the author played a prominent role in
OLF. The Board’s decision stated that she and her child could be removed to Ethiopia.
2.4
The author submits, inter alia, copies of her health records from 2013 to 2014, a letter
dated 30 August 2015 from the chair of the OLF committee in the United Kingdom of Great
Britain and Northern Ireland1 and a letter from the Ministry of the Interior of Italy confirming
her refugee status in Italy.
Complaint
3.1
The author claims that the removal of herself and her son to Ethiopia would breach
their rights under article 6 of the Covenant as, given her family’s and her own activities for
OLF, it would result in an immediate risk of losing her life at the hands of the authorities.
According to the author, this risk was acknowledged when Italy granted her refugee status.
1 Among other things, in the letter, the chair states that the author was a known supporter of OLF.
Following her registration as a member of OLF with Oromo community members in Khartoum, the
author had a good record of participation in Oromo meetings and interacted with Oromo individuals
to discuss Oromo political problems. She regularly attended Oromo meetings and sung many Oromo
songs praising OLF and raising awareness of the Oromo people so that they would take a stand
against the current Government of Ethiopia. The author also supported OLF financially by selling
Oromo cultural dresses. The chair notes that any participation in Oromo movements abroad was used
as a pretext for agents of the Government of Ethiopia to arrest Oromo persons if they went back to
Ethiopia. The chair then expands on the risks for Oromo people in Ethiopia, including for returnees
under surveillance abroad.
CCPR/C/132/D/2651/2015
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3.2
The author notes that the Danish Immigration Service decided that she could be
returned to Italy. However, she lived on the streets in that country, contracted tuberculosis
and was sexually abused, resulting in the birth of her son. Therefore, her return to Italy would
amount to a breach of article 7 of the Covenant.
3.3
The author also submits that a removal to Italy would violate article 24 of the
Covenant. Her son would be exposed to living on the streets in Italy and she would be at risk
of further sexual abuse. If returned to Ethiopia, her son would suffer from a high risk of
detention and harm to his single mother due to her and her family’s affiliation with OLF.
State party’s observations on admissibility and the merits
4.1
On 24 March 2016, the State party submitted its observations on admissibility and the
merits. It notes that the Danish Immigration Service rejected the author’s asylum application
on 14 July 2015. On 4 September 2015, the Refugee Appeals Board upheld this decision.
4.2
The State party provides a description of its relevant domestic law and procedures,
the legal basis for the decisions taken by the Refugee Appeals Board, the proceedings before
it and the legal standards applied, including the principle of the country of first asylum.
4.3
The State party submits that the author argues incorrectly that the Danish Immigration
Service decided that Italy was to serve as the country of first asylum for her and her son.
Indeed, the Danish Immigration Service did not consider that the author or her son would
risk persecution in Ethiopia, as it considered the author’s statements not to be credible. The
Danish Immigration Service also found her to be a low-profile individual, as it was unlikely
that she was persecuted by the Ethiopian authorities due to her family’s or her own support
for OLF. Only if the Refugee Appeals Board were to accept her statements as facts and found
that she fell within section 7 of the Aliens Act, which incorporates article 1 (A) of the
Convention relating to the Status of Refugees into Danish law, could Italy serve as the
country of first asylum. The Board also examined her alleged risk if returned to Ethiopia
rather than Italy. The State party submits that the author and her son are to be removed to
Ethiopia and that their claims concerning Italy are therefore irrelevant and inadmissible as
manifestly unfounded under rule 99 (b) of the Committee’s rules of procedure.
4.4
The State party adds that the author has also failed to substantiate sufficiently her
claims under articles 6 and 7 of the Covenant in relation to her and her son’s removal to
Ethiopia.2
4.5
The State party observes that the author’s claim under article 24 of the Covenant
contains no allegations of violations arising out of treatment that she and her son experienced
in Denmark, or where the Danish authorities are in effective control, or that are due to their
conduct. The Committee does not appear to have ever considered the merits of a
communication regarding the removal of a person who feared a violation of provisions other
than articles 6 or 7 of the Covenant in the receiving State. Furthermore, it follows from the
Committee’s general comment No. 31 (2004) that the obligation under article 2 of the
Covenant requiring States parties to respect and ensure the Covenant rights for all persons in
their territory and under their effective control entails an obligation not to extradite, deport,
expel or otherwise remove a person from their territory where there are sufficient grounds
for believing that there is a real risk of irreparable harm such as that contemplated by articles
6 and 7 of the Covenant, whether in the country to which removal is to be effected or in any
country to which the person may subsequently be removed. The removal of a person fearing
a violation of his or her rights under, for example, article 24 of the Covenant by another State
party will not cause such irreparable harm as contemplated in articles 6 and 7 of the Covenant.
This claim is therefore incompatible ratione loci and ratione materiae with the provisions of
the Covenant, and the Committee lacks jurisdiction over it.3
2 The State party notes that it understands the communication as also claiming a breach of article 7 of
the Covenant upon the author’s and her son’s removal to Ethiopia, even if no such claim is made
explicitly.
3 The State party refers, inter alia, to the decision of 22 June 2004 the European Court of Human Rights
in F. v. United Kingdom (application No. 17341/03), in which the Court found inadmissible an
application claiming a violation of article 8 of the Convention for the Protection of Human Rights and
CCPR/C/132/D/2651/2015
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4.6
The State party submits that the removal of the author and her son to Ethiopia would
not be contrary to articles 6 or 7 of the Covenant. It observes that the communication contains
no new information, except for the letter dated 30 August 2015 from the chair of the OLF
committee in the United Kingdom. The Refugee Appeals Board accepted that the author had
been able to stay in Ethiopia up to about three weeks after her father’s death in 2003, without
having been contacted by the Ethiopian authorities. It also accepted that several of her family
members had remained there for a long time, including her mother, who left Ethiopia only in
2010, around four years after the author’s activities in the Sudan had ceased. Moreover, the
author did not play a prominent role in OLF. The Board thus found that a specific and
individual risk of persecution was improbable.
4.7
The State party observes that it appears from the author’s statements in the asylum
proceedings that she, her mother and her siblings had not experienced any kind of conflict
with the Ethiopian authorities as a consequence of her father’s circumstances, except for
several house searches both before and after his death, despite his longstanding commitment
to OLF, and the fact that he had been imprisoned several times in that connection and died
as a result of torture. Her mother and siblings were also politically active members of OLF
in Ethiopia, without experiencing any reprisals, and her mother was able to continue living
there until around 2010. Moreover, the author herself was not involved with OLF while still
in Ethiopia.
4.8
The State party further observes that the author stated that her mother had often been
summoned for interviews with the Ethiopian authorities because they wanted information on
the whereabouts of her children, and that the summonses had become more frequent after her
departure. The State party notes that the author’s mother was only asked about the departure
and whereabouts of her children and that she had not been subjected to abuse on these
occasions. When asked why her mother had been summoned, the author replied that there
was no real answer to this question, but that she guessed that the authorities suspected her
and her siblings of performing illegal political activities.
4.9
Concerning the author’s stay in the Sudan for around two years between 2003 and
2006, the State party notes that it results from her own statement that she did not have any
contact with the Sudanese authorities at any time, nor was she identified or known in
connection with her OLF activities in the Sudan. Some 600 to 700 people had been present
at the OLF meetings that she attended. Furthermore, she does not appear to have played a
prominent role; as she worked as a cleaner and in a cafeteria, her financial contributions were
small and she was active for OLF only by singing, cooking and receiving tuition. Additionally,
she was active for OLF only in the Sudan and only for two years and ceased these activities
in 2006. The author was never identified as an OLF supporter nor had any problems with the
Ethiopian authorities on account of her activities.
Fundamental Freedoms (European Convention on Human Rights) on the ground that a law in the
Islamic Republic of Iran, the country to which the applicant was to be returned, criminalized adult
consensual homosexual acts. The Court stated that compelling considerations arising out of a risk of
treatment contrary to articles 2 and 3 of the Convention “do not automatically apply under the other
provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling
Contracting State only return an alien to a country which is in full and effective enforcement of all the
rights and freedoms set out in the Convention”. The State party also refers to a decision of 28
February 2006, Z. and T. v. United Kingdom (application No. 27034/05), in which the European
Court of Human Rights observed: “Where however an individual claims that on return to his own
country he would be impeded in his religious worship in a manner which falls short of those
proscribed levels, the Court considers that very limited assistance, if any, can be derived from article
9 by itself. Otherwise, it would be imposing an obligation on Contracting States effectively to act as
indirect guarantors of freedom of worship for the rest of the world”. The State party submits that, in a
few special cases, the European Court of Human Rights has presumed that responsibility could attach
to a Contracting State in respect of circumstances outside of its own territory in relation to article 8 of
the European Convention on Human Rights. However, those cases presented territorial ties with the
Contracting State, contrary to the present case.
CCPR/C/132/D/2651/2015
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4.10
The State party notes with concern reports of human rights violations in Ethiopia,
including against actual and suspected dissidents in Oromia Region.4 Over the past few years,
a large number of Oromo continue to be arrested or detained for the peaceful expression of
dissent or their suspected opposition to the Government. Following protests against the
planned expansion of Addis Ababa into Oromo territory, the number of arrests of actual or
suspected dissenters increased. However, the background information does not lead to the
conclusion that any contact or affiliation with the Oromo people or involvement in their
struggle would justify granting asylum. 5 Moreover, there are no reports of Ethiopian
nationals who have been imprisoned or subjected to other abuse following a forcible return,
with some sources having indicated that they would have been informed of such incidents.
Persons most likely to attract attention are those perceived as threats, those willing to use
military power and the leaders and the most prominent members of opposition groups.
However, anonymous participation in demonstrations with hundreds of participants will not
in itself lead to persecution.
4.11
The State party further notes that the author has not returned to Ethiopia and that there
are no specific reasons to assume that the Sudanese authorities have any information or
documentation concerning her involvement in OLF activities in the Sudan from 2003 to 2006
that could have been transmitted to the Ethiopian authorities. The State party argues that this
perception is exclusively based on her own assumptions. Furthermore, the letter dated 30
August 2015 from the chair of the OLF committee in the United Kingdom cannot lead to a
different assessment, as it only relates to the author’s limited activities in Khartoum and
provides only general information on the monitoring of Oromo activities outside of Ethiopia,
without being linked specifically to the author. Additionally, the State party has not been able
to confirm in a general Internet search, including on the OLF website, that the author of the
letter chairs the OLF committee in the United Kingdom or can otherwise be associated with
it. Thus, neither the general situation of the Oromo in Ethiopia nor the information provided
by the author can lead to the conclusion that the author risks being imprisoned, tortured,
abducted or killed upon return to Ethiopia. The information on her health cannot lead to a
different assessment, and she has been cured of tuberculosis.
4.12
The State party notes the Committee’s jurisprudence according to which considerable
weight should be given to the assessment conducted by the domestic authorities, unless it is
found that the evaluation was clearly arbitrary or amounted to a denial of justice, and that it
is generally for the organs of the States parties to the Covenant to review or evaluate facts
and evidence in order to determine whether such a risk exists.6 The State party argues that
the author benefited from due process guarantees, that she has not provided any new, specific
details about her situation and that the communication does not identify any irregularity in
the decision-making process or any risk factors that the authorities failed to properly consider.
4 Amnesty International, “Because I Am Oromo: Sweeping Repression in the Oromia Region of
Ethiopia”, October 2014; Human Rights Watch, “Ethiopia: Lethal Force Against Protestors”, 18
December 2015, available from https://www.hrw.org/news/2015/12/18/ethiopia-lethal-force-against-
protesters; United State of America, Department of State, “Country Report on Human Rights
Practices 2014 – Ethiopia”, 25 June 2015; Human Rights Watch, “World Report 2015: Ethiopia”; and
Amnesty International, “Report 2014/15 – Ethiopia”, 25 February 2015.
5 The State party notes that the Committee against Torture, in a case concerning the removal of a
female ethnic Oromo who claimed that her father had carried out political activities and who claimed
to have been tortured on account of her and her father’s activities for OLF, concluded that the
complainant’s removal to Ethiopia would not constitute a violation of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (X v. Denmark
(CAT/C/53/D/458/2011), para. 9.8). The State party also refers to H.K. v. Switzerland
(CAT/C/49/D/432/2010), where the Committee against Torture also found that the forced return of a
female Ethiopian complainant, who claimed to have been active for another Ethiopian opposition
party in Ethiopia and Switzerland, would not violate article 3 of the Convention against Torture.
6 P.T. v. Denmark (CCPR/C/113/D/2272/2013), para. 7.3; K v. Denmark (CCPR/C/114/D/2393/2014),
paras. 7.3–7.4; A.A.S. v. Denmark (CCPR/C/117/D/2464/2014), para. 7.3; Mr. X and Ms. X v.
Denmark (CCPR/C/112/D/2186/2012), para. 7.5; and Z v. Denmark (CCPR/C/114/D/2329/2014),
para. 7.4.
CCPR/C/132/D/2651/2015
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Author’s comments on the State party’s observations on admissibility and the merits
5.1
In her comments of 22 September 2016, the author agrees that article 24 of the
Covenant is irrelevant, as it has not previously proven to have extraterritorial effect. However,
the fact that she has a child, born because of her sexual abuse in Italy, renders her and her
child more vulnerable to serious harm covered by articles 6 and 7 if removed to Ethiopia,
where they no longer have any family.
5.2
The author notes that the decision of the Danish Immigration Service is purely
administrative and no legal counsel or independent third party is required to intervene. During
the interview, the Danish Immigration Service representative expressed a negative opinion
of her chances of receiving a positive decision. Apart from the decision of the Danish
Immigration Service, there is no other domestic remedy, as the Aliens Act prohibits an appeal
to an ordinary court, despite the crucial matters in asylum procedures. According to the author,
this constitutes a fair trial and discrimination problem. The Refugee Appeals Board also lacks
the attributes of a real court, as the meetings remain closed. Additionally, one of the five
members is appointed by the Ministry of Justice and that person is usually an employee of
that Ministry, which is the superior administrative body to the Danish Immigration Service.
Furthermore, the quality of interpretation varies greatly. Finally, no audio recordings have
been made available.
5.3
The author notes that the Danish Immigration Service assessed that Italy could serve
as her first country of asylum, pursuant to the Aliens Act, section 7 (3). It concluded that,
consequently, the police could deport the author to Italy if she does not leave voluntarily, in
accordance with the Aliens Act, section 32a. Thus, in her appeal, she focused on a return to
Italy, where she was forced to live on the streets, contracted tuberculosis and was sexually
abused. As Italy is known to lack resources for taking care of refugees, she and her son would
be in imminent risk of repeated abuse and exposure to disease. If there was a doubt
concerning her statements, the authorities should have requested her files from the Sudan and
Italy. The Refugee Appeals Board accepted her credibility, but decided that she and her son
could be removed to Ethiopia. She reiterates that she has made a prima facie case against
removal, whether to Ethiopia or Italy.
5.4
The author notes that the State party does not dispute that the Italian authorities and
UNHCR have recognized her refugee status. Given the history of the handling of her case in
Denmark, including frustrating alternating decisions after her arrival in Denmark following
her escape from Ethiopia as a 16-year-old girl, it would be legally and humanly unfair to
remove her to Ethiopia. She reiterates her arguments concerning the risks of such a removal
and confirms that she claims that this would also breach article 7 of the Covenant.
5.5
The author notes that, in the period leading up to and about three weeks after her
father’s death, she was only 16 years old. Her mother was interrogated several times after her
escape concerning her and her siblings’ whereabouts. She came of age in the Sudan and
started to express support for her family’s cause. However, her refugee camp was attacked
by the military, in a joint operation by the Ethiopian and Sudanese authorities. Many Oromo
refugees were arrested, but she managed to escape. She fears being imprisoned, subjected to
ill-treatment, and losing her life like her father because of his activities and her own public
loyalty to OLF. She would be an obvious target, as she is no longer a child, and would be
without family protection. Moreover, she stated in her interview that the situation of the
Oromo people was worse than when she left, and that people were executed simply for being
OLF members. If returned, her illegal escape would become evident and her record and
activities for OLF in the Sudan could become known, given the cooperation between the
Ethiopian and Sudanese authorities and in light of the interrogations of her mother. Even if
she was not in personal contact with the Sudanese authorities, it is still likely that she was
recognized or monitored because she was a frequent performer in public events against the
Government of Ethiopia, which closely cooperates with the Sudanese authorities.
Furthermore, the sources cited by the State party mention that “the Ethiopian Government’s
response to the Oromia protests has resulted in scores dead and a rapidly rising risk of greater
bloodshed”.7 She submits that, given her struggle of many years to escape the oppression of
7 Human Rights Watch, “Ethiopia: Lethal Force Against Protestors”, 18 December 2015.
CCPR/C/132/D/2651/2015
7
the Oromo people, she should be given the benefit of the doubt concerning the question as to
whether the Ethiopian authorities have known about her activities.
Additional observations
From the State party
6.1
By note verbale of 20 February 2017, the State party provided additional observations,
noting that the author’s comments contain no new information on the situation in Ethiopia.
The State party observes that article 13 of the Covenant does not contain a right to appeal8 or
to a court hearing in cases involving the expulsion of an alien.9 The author’s case has been
examined at two instances, and essential new information may give rise to a reopening of the
proceedings. Decisions of the Refugee Appeals Board, which is a quasi-judicial body, are
final. However, aliens may bring an appeal before the ordinary courts, whose review is
limited to points of law. Members of the Refugee Appeals Board are independent and cannot
accept or seek directions from, or discuss a case with, the appointing or nominating authority,
including the central administration of the Ministry of Immigration and Integration
(previously the Ministry of Justice). On the closed nature of hearings before the Board and
the absence of educational requirements for interpreters, the State party notes that the author
did not request that others be allowed to attend her hearing, and did not identify any
interpretation errors. Moreover, the Danish Immigration Service and the Refugee Appeals
Board are very attentive to the adequacy of interpretation and will suspend a hearing if
problems arise. As for the benefits of audio recordings, the State party notes that a case officer
makes a written report of the asylum-seeker’s statements before the Danish Immigration
Service and that after the interview the record is read to the asylum-seeker, who can comment
on and correct it and elaborate. A summary record is also made of the asylum-seeker’s
statements before the Refugee Appeals Board, and any issues are clarified during the
hearing.10 In the present case, the author has not claimed that any errors or misunderstandings
affected the Board’s decision.
6.2
Concerning the author’s claim that it would be unfair to enforce her removal given
the alternating decisions on her case, the State party notes that the fact that it took almost two
years for the Danish Immigration Service to decide does not imply that she must be
considered as falling within section 7 of the Aliens Act. Moreover, the Refugee Appeals
Board accepted her account, and she has not explained how her files from Italy or UNHCR
would have contributed to her case. Furthermore, she has not explained how the negative
comment made by the representative of the Immigration Service affected the decision of the
Refugee Appeals Board or the Committee’s consideration of the present communication.
6.3
The State party submits that the author has incorrectly argued that the Danish
Immigration Service decided that she must be deported to Italy. In fact, it concluded that it
could not consider as established that she would risk persecution in Ethiopia. As the Refugee
Appeals Board confirmed this conclusion, it was irrelevant to assess whether Italy could serve
as her first country of asylum. In cases where the Immigration Service found that an asylum
seeker did not fall within section 7 of the Aliens Act, it was the usual practice, at the time of
the submission of an asylum application, to make an alternative assessment of the existence
of an internal flight alternative or another country of first asylum for the purpose of a
subsequent hearing before the Refugee Appeals Board. The author’s counsel who filed the
initial submission in the present communication also represented her before the Board and it
was clear from her brief that they were aware that the case focused on her grounds against
returning to Ethiopia. Given her expertise in domestic proceedings, the counsel could not
have been in doubt about the meaning of the decision of the Refugee Appeals Board.
6.4
The State party reiterates that the author cannot be considered a high-profile individual
for the Ethiopian authorities, that she carried out all of her OLF activities outside of Ethiopia
and that she was never identified in this regard. Therefore, there is no reason to assume that
the Ethiopian authorities have any information, much less documentation, on these activities.
8 Mr. X and Ms. X v. Denmark, para. 6.3.
9 Maroufidou v. Sweden (CCPR/C/12/D/58/1979).
10 K v. Denmark, para. 7.6.
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Furthermore, she does not justify her argument that the benefit of the doubt should be
accorded to her in respect of this claim. Neither has she explained how her status as a single
mother of a child born out of wedlock would lead to a risk of a violation of articles 6 or 7
under the Covenant. Moreover, despite the general security situation and the difficult
conditions of the Oromo people in Ethiopia, including increasing numbers of anti-
government demonstrations in the Oromia and Amhara Regions and the declaration of a state
of emergency in October 2016, it cannot be concluded that any contact or affiliation with the
Oromo people would justify granting asylum.
From the Author
7.1
On 8 June 2017, the author submitted additional comments. She confirms that she did
not make any request for others to be present at her hearing before the Refugee Appeals
Board and that she made no complaint against the interpretation. She only intended to
illustrate general weaknesses in the domestic asylum system.
7.2
She reiterates her fear for her and her son’s lives upon removal to Ethiopia because of
her young age when she fled Ethiopia, her father’s activities for OLF that led to his torture
and death, her own support for OLF, the lack of family support and the fact that her son was
born out of wedlock. She also reiterates the authorities’ acceptance of her asylum account
and the State party’s acknowledgment of the difficult conditions of the Oromo in Ethiopia.
She refers to an article according to which “in some Ethiopian villages, children considered
‘mingi’, or cursed, are killed. A child can be mingi because of physical deformities,
illegitimate birth or superstitions.”11 She notes that public information also states that Oromo
are often arbitrarily arrested and accused of belonging to OLF, 12 which, she submits,
underlines her personal risk in light of her individual circumstances.
From the State party
8.
In its additional observations of 8 August 2017, the State party observes that the author
did not claim a risk arising out of her son’s illegitimate birth in the domestic proceedings.
Neither has she substantiated why he would be at a particular risk. Moreover, she comes from
the city of Jima, which has 160,000 inhabitants, whereas the article invoked, written in 2011,
describes the situation in villages. Furthermore, she claimed a risk of persecution by the
Ethiopian authorities, whereas the article mentions that children are killed by tribal leaders.
Information gathered by the Refugee Appeals Board states that gender-based and “honour-
related” violence often occurs in rural and conflict-ridden areas in Ethiopia.13 It is also more
common now in large towns and cities for young men and women to date openly and engage
in premarital sexual relations. The State party concludes that the claim concerning her son’s
illegitimate birth cannot lead to a different assessment, including as considered together with
the other circumstances of the case.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claim contained in a communication, the Committee must
decide, in accordance with rule 97 of its rules of procedure, whether the communication is
admissible under the Optional Protocol.
9.2
The Committee has ascertained, as required under article 5 (2) (a) of the Optional
Protocol, that the same matter is not being examined under another procedure of international
investigation or settlement.
11 CNN, “Is the tide turning against the killing of ‘cursed’ infants in Ethiopia?’, story highlights, 5
November 2011.
12 Human Rights Watch, “Ethiopia: Lethal Force Against Protestors”; Amnesty International, “Because
I Am Oromo”; and Human Rights Watch, “‘Such a Brutal Crackdown’; Killings and Arrests in
Response to Ethiopia’s Oromo Protests”, 15 June 2016.
13 See Landinfo, Etiopia: kvinners situasjon, Temanotat (Ethiopia: the situation of women, thematic
report), 11 May 2016.
CCPR/C/132/D/2651/2015
9
9.3
The Committee notes that the State party does not submit that the author has not
exhausted all available domestic remedies, except insofar as she did not raise the issue of a
risk of harm arising out of her son’s illegitimate birth in the domestic proceedings. The author
has not contested this. Accordingly, the Committee considers that it is not precluded under
article 5 (2) (b) of the Optional Protocol from examining the communication, except insofar
as it concerns the author’s claim of a risk of harm arising out of her son’s illegitimate birth.
9.4
The Committee notes the State party’s submission that the author’s claims under
articles 6 and 7 of the Covenant are inadmissible on the ground that she has failed to make a
prima facie case. With regard to the author’s contention that she has made a prima facie case
against the removal of herself and her son to Italy, the Committee notes that the stipulation
by the Danish Immigration Service that they could be removed to Italy was an alternative
assessment for the purpose of a subsequent hearing before the Refugee Appeals Board, and
that the State party has clarified the intention of its authorities to remove the author and her
son to Ethiopia, not Italy. Therefore, the Committee finds that these claims as presented by
the author are not relevant for the case at hand, and decides not to consider them.
9.5
The Committee also notes the author’s argument that she has made a prima facie case
against her and her son’s removal to Ethiopia, owing to the security conditions for Oromo
persons in Ethiopia, her father’s torture and death because of his activities for OLF, her own
OLF activities in the Sudan, the interrogations of her mother, her lack of family protection
and her young age when she left Ethiopia. She has additionally argued that the State party
has accepted her account of what happened to her, and that UNHCR and the Italian authorities
have recognized her as a refugee. The Committee considers that, for the purposes of
admissibility, the author has sufficiently substantiated her allegations under articles 6 and 7
of the Covenant. In light of the above, the Committee declares the communication admissible
insofar as it raises issues under articles 6 and 7 and proceeds to its consideration of the merits.
Consideration of the merits
10.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, as required under article 5 (1) of the Optional Protocol.
10.2
The Committee recalls its general comment No. 31 (2004), 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 an
irreparable harm, such as those contemplated by articles 6 and 7 of the Covenant.14 The
Committee has also indicated that the risk must be personal, with a high threshold for
establishing substantial grounds for the existence of a real risk of irreparable harm.15 Thus,
all relevant facts and circumstances must be considered, including the general human rights
situation in the author’s country of origin. The Committee further recalls its jurisprudence
that significant weight should be given to the assessment conducted by the State party, and
that it is generally for the organs of States parties to examine the facts and evidence of the
case in order to determine whether such a risk exists, unless it can be established that the
assessment was arbitrary or amounted to a manifest error or denial of justice.16
10.3
The Committee notes the information according to which the State party’s authorities
do not have the intention to remove the author and her son to Italy, as first country of asylum,
but to Ethiopia as her country of origin. The Committee notes the State party’s assertion that
the author’s claims are not sufficiently substantiated to show a risk of death or torture, if the
author and her son are returned to Ethiopia. The State party claims that the author was able
to stay in Ethiopia for three weeks after her father’s death in 2003, and that several members
of her family, including her mother, were able to live in Ethiopia for a long time. The State
party further claims that the author does not appear to have played a prominent role in OLF.
and that she herself was not involved in OLF activities while residing in Ethiopia. Regarding
the author’s OLF activities in the Sudan, the State party claims that she was a cleaner and
worked in a cafeteria, that her financial contributions were small and that her activities for
14 Para. 12.
15 X v. Denmark (CCPR/C/110/D/2007/2010), para. 9.2; A.R.J. v. Australia (CCPR/C/60/D/692/1996),
para. 6.6; and X v. Sweden (CCPR/C/103/D/1833/2008), para. 5.18.
16 X v. Denmark, para. 9.2; and X v. Sweden, para. 5.18.
CCPR/C/132/D/2651/2015
10
OLF were only singing, cooking and receiving tuition. While the State party acknowledges
concerns about human rights violations in Ethiopia, including against actual and suspected
dissidents in Oromia Region, it submits it cannot accept that mere contact or affiliation with
the Oromo people or involvement in their struggle would justify granting asylum. The State
party submits that the findings of domestic authorities must be given considerable weight,
and that the author benefited from due process guarantees, whereas she has not provided any
new, specific details about her situation in the communication nor identified any irregularity
in the decision-making process or any risk factors that the authorities failed to properly
consider.
10.4
The Committee notes the author’s claim that, if returned to Ethiopia, she and her son
face a risk of torture and death due to the activities of her family and herself. The author
claims that her father was an outspoken OLF leader who was tortured and died in prison
because of his activities for OLF when she was young. She claims that it is also due to these
events and subsequent threats that not only her but her siblings and her mother were also
forced to flee the country at some point (see para. 2.1 above). The author further claims that
before her mother fled the country she was interrogated several times concerning the author’s
and her siblings’ whereabouts (see para. 5.5 above), and that their home was searched several
times (see para. 4.7 above). The author claims that she actively participated in OLF activities
in the Sudan. The author further claims, as an additional element, a risk due to her son being
born out of wedlock, since such children are considered cursed and may be killed (para. 7.2).
10.5
The Committee reiterates that it is the organs of the State that are best placed to make
findings of fact based on the evidence and testimony before them, unless such findings are
arbitrary or amount to a manifest error or denial of justice. In this connection, the Committee
finds that the author provided sufficient explanations and substantiation where possible to
demonstrate that she and her son would face risks of death and torture, by providing sufficient
details that she had to flee Ethiopia three weeks after the torture and death of her father, an
OLF leader, that not only she, but her siblings and her mother faced threats and had to flee
as well. These factors, taken each separately and cumulatively, required an in-depth
examination in order to determine whether the author faced a real and personal risk of
treatment contrary to the Covenant.
10.6
In the absence of an assessment, which takes into consideration the consequences of
the author’s activities, the activities of her late father, the treatment that her siblings and
mother received, and the situation and the potential treatment that her son might face if
returned, the Committee considers that the State party has failed to demonstrate that the
administrative and/or judicial authorities have conducted an individualized assessment of the
author’s case sufficient to determine whether there are substantial grounds for believing that
there is a real risk of irreparable harm, as contemplated by articles 6 and 7 of the Covenant,
if the author and her son are removed to Ethiopia.
11.
The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that
the author’s and her son’s removal to Ethiopia, if implemented in the absence of a procedure
which guarantees a proper assessment of the real and personal risk that she and her son might
face if deported, would violate the rights of the author and her son under articles 6 and 7 of
the Covenant.
12.
In accordance with article 2 (1) of the Covenant, which establishes that States parties
undertake to respect and to ensure to all individuals within their territory and subject to their
jurisdiction the rights recognized in the Covenant, the State party is under an obligation to
proceed to a review of the author’s case, taking into account the State party’s obligations
under the Covenant and the Committee’s present Views. The State party is also requested to
refrain from expelling the author until her request for asylum is properly considered.
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11
13.
Bearing in mind that, by becoming a party to the Optional Protocol, the State party
has recognized the competence of the Committee to determine whether there has been a
violation of the Covenant and that, pursuant to article 2 of the Covenant, the State party has
undertaken to ensure to all individuals within its territory and subject to its jurisdiction the
rights recognized in the Covenant and to provide an effective and enforceable remedy in case
a violation has been established, the Committee wishes to receive from the State party, within
180 days, information about the measures taken to give effect to the Committee’s Views. The
State party is also requested to publish the present Views and to have them widely
disseminated in the official languages of the State party.
CCPR/C/132/D/2651/2015
12
Annex
Joint opinion of Committee members Furuya Shuichi,
Photini Pazartzis and Vasilka Sancin (dissenting)
1.
We are unable to concur with the conclusion in the present Views that the removal of
the author and her son to Ethiopia, if implemented, would violate their rights under articles
6 and 7 of the Covenant.
2.
According to the jurisprudence of the Committee, it is generally for the organs of a
State party to examine the facts and evidence of the case in question in order to determine
whether a real risk of irreparable harm exists when a person is deported to the country of his
or her origin, unless it can be established that the assessment was clearly arbitrary or
amounted to a manifest error or denial of justice.1 This means that, in deportation cases, the
Committee departs from the assessment by the State party of the risks only when it establishes
on the basis of the evidence and information submitted to it that the State party’s assessment
was substantively or procedurally clearly arbitrary, manifestly erroneous or constituted a
denial of justice. Furthermore, it is the author who bears the burden of proof to establish that
the assessment by the State party was such as to fail the above-mentioned standard.
3.
In the present case, the State party provided the author with sufficient occasions to
explain her and her son’s situation and then made an individualized assessment in light of the
factual background. In fact, the author does not identify any irregularity in the decision-
making process or any risk factors that the authorities of the State party failed to consider. At
variance between the authors and the State party is the assessment of those factors they
recognized.
4.
The Committee’s Views, supporting the authors’ claim, find that “the author provided
sufficient explanations and substantiation where possible to demonstrate that she and her son
would face risks of death and torture, by providing sufficient details that she had to flee
Ethiopia three weeks after the torture and death of her father, an OLF leader, that not only
she, but her siblings and her mother faced threats and had to flee as well”. In our opinion,
however, this is not an appropriate finding. The author has provided no detailed explanation
on what happened in the three weeks after her father’s death nor the reason why she decided
to leave Ethiopia. Nor has she explained clearly why her mother was summoned for an
interview with the Ethiopian authorities, as well as the reason her mother and other family
members had not decided to leave Ethiopia with her and were able to live there for a long
time if they actually faced threats and abuse. As the State party observed, one of the main
grounds for risk assessment was that she could stay in Ethiopia for three weeks without
having been contacted by the Ethiopian authorities (see para. 4.6 above) and her mother was
able to continue living there until 2010 without experiencing any reprisals (see para. 4.7).
The author must have known that these factors were crucial points for assessment.
Nevertheless, as far as we read the author’s comments on the State party’s observations (see
paras. 5.5 and 7.2 above), there is no convincing explanation that, contrary to the State party’s
observations, she and her family members were in reality under the threat of death or ill-
treatment in Ethiopia.
5.
In addition, the author has not provided sufficient information to demonstrate, as a
matter of her specific and individual risk, that she would be at risk of death or torture or ill-
treatment because of her involvement in OLF activities in the Sudan. The State party observes
that she had no contact with the Sudanese authorities at any time during her stay in the Sudan,
nor was she identified or known in connection with OLF activities in the Sudan. Some 600
to 700 people had been present at the OLF meetings she attended and, according to the State
party, anonymous participation in demonstrations with hundreds of participants may not
itself lead to persecution (see para. 4.9 above). The State party also observes that there are
no specific reasons to assume that the Sudanese authorities have any information or
1 K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.4; Q.A. v. Sweden (CCPR/C/127/D/3070/2017),
para. 9.3; and A.E. v. Sweden (CCPR/C/128/D/3300/2019), para 9.3.
CCPR/C/132/D/2651/2015
13
documentation concerning her involvement in OLF activities that could have been
transmitted to the Ethiopian authorities (see para. 4.11 above). Furthermore, the author has
not provided any clear rebuttal to these observations of the State party.
6.
As recognized in the present Views, the organs of the State are best placed to make
findings of facts based on the evidence and testimony before them (see para. 10.5 above).
For this very reason, the Committee has taken the position that it respects the assessment by
the State party unless the author sufficiently and convincingly demonstrates that the State
party’s assessment was clearly arbitrary or amounted to a manifest error or denial of justice.
In the present case, we consider, in the absence of pertinent information provided by the
author, that she failed to demonstrate that the assessment by the authorities of the State party
was clearly arbitrary or amounted to a manifest error or denial of justice. Accordingly, we
conclude that the removal of the authors, if implemented, would not constitute a violation of
articles 6 and 7 of the Covenant.