The case of Z.H. v. Sweden. Views of the Committee on the Rights of Persons with Disabilities dated September 6, 2021. Message No. 58/2019.
In 2019, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Sweden.
As seen from the text of the Considerations, the author claimed that by expelling him to Afghanistan, the State party would violate his rights under articles 10 and 15 of the Convention on the Rights of Persons with Disabilities, since his expulsion would lead to a serious risk of suicide and other threats to his life and health. He also drew attention to the fact that the medical reports submitted to the national authorities indicated that he had been diagnosed with long-term mental illness and believed that the lack of appropriate medical treatment in Afghanistan would lead to a serious, rapid and irreversible deterioration of his health, would cause severe suffering or a significant reduction in life expectancy (paragraph 3.1 of the Considerations).
The Committee's legal position: In article 10 of the Convention [on the Rights of Persons with Disabilities], States parties reaffirm the inalienable right of everyone to life and take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. The Committee also recalls that, in accordance with article 15 of the Convention, States parties shall take all effective legislative, administrative, judicial or other measures to ensure that persons with disabilities, on an equal basis with others, are not subjected to torture or cruel, inhuman or degrading treatment or punishment (paragraph 10.2 of the Views).
The Committee noted: in its general comments No. 31 (2004), the Human Rights Committee refers to the obligation of States parties not to extradite, deport, expel or otherwise expel a person from their territory when there are serious grounds to believe that there is a real risk of irreparable harm, such as provided for in articles 6 and 7 of the Covenant (paragraph 12). He also notes that the Human Rights Committee in its previous decisions indicated that the danger should threaten a person personally (See The case "X v. Denmark" (CCPR/C/110/D/2007/2010), paragraph 9.2.) and a high threshold must be applied to establish the existence of a real risk of irreparable harm. For this reason, all relevant facts and circumstances must be taken into account, including the general human rights situation in the author's country of origin (See the case "X v. Sweden" (CCPR/C/103/D/1833/2008), paragraph 5.18.). In its jurisprudence, the Human Rights Committee has emphasized that considerable weight should be given to the assessment carried out by the State, and that, as a rule, it is for State authorities to review or evaluate the facts and evidence in a particular case in order to determine the existence of a threat, unless it is established that such an assessment was clearly arbitrary or was it is equivalent to an obvious error or denial of justice (paragraph 10.3 of the Considerations) (See the case "K. v. Denmark" (CCPR/C/114/D/2393/2014), paragraph 7.4 and the case of Z.H. v. Australia" (CCPR/C/107/D/1957/2010), paragraph 9.3.).
The Committee further recalls its decision in the case N.L. v. Sweden, in which it found a violation of article 15 of the Convention due to the fact that the State party did not assess whether the author would be able to access medical care in Iraq appropriate to her diagnosis, although she submitted several medical reports to the national authorities conclusions in which her state of health was assessed as severe and life-threatening in the absence of treatment she received in the State party. The Committee notes that in this decision reference was made to the relevant jurisprudence of the Human Rights Committee (See the case of Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark (CCPR/C/116/D/2409/2014), para. 7.8.), the Committee against Torture (see Harun v. Switzerland (CAT/C/65/D/758/2016), paragraphs 9.7 - 9.11.) and the European Court of Human Rights (See: Savran v. Denmark, considered by the European Court of Human Rights, in which the court ruled: The expulsion of the applicant to Turkey without the Danish authorities receiving sufficient and individual assurances that the applicant will receive the necessary care in Turkey would be a violation of article 3 of the European Convention on Human Rights.). The Committee notes that the general principles formulated in these decisions were confirmed in the N.L. case. v. Sweden" (paragraphs 7.3 - 7.5) and remain relevant to the assessment of the case (paragraph 10.4 of the Views).
As a rule, the assessment of facts and evidence in a particular case falls within the competence of the courts of the participating States, unless it is proved that such an assessment was manifestly arbitrary or constituted a denial of justice (paragraph 10.8 of the Views) (See the case of Bacher v. Austria (CRPD/C/19/D/26/2014), paragraph 9.7.).
The Committee recalls the position of the Committee against Torture and the European Court of Human Rights, according to which the burden of proof lies with the author of the communication, who must provide evidence capable of demonstrating that there are serious grounds to believe that, if expelled, he would be at real risk of ill-treatment. Nevertheless, it is not a question of requiring clear evidence, since the preventive purpose of the principle prohibiting forced return (non-refoulement) has a certain element of speculation (paragraph 10.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: the author's claims that by deporting him to Afghanistan, the State party would violate his rights under articles 10 and 15 of the Convention, since his expulsion would lead to a high risk of suicide, as well as other serious threats to his life and health. The Committee also took note of the information provided by the author that he had been diagnosed with severe depression with psychotic symptoms and had been treated twice in accordance with the Law on Compulsory Psychiatric Care after he had hallucinations and suicidal moods and had made several suicide attempts. The Committee also took into account the author's argument that although during the asylum procedure he submitted several medical reports confirming that he had also been diagnosed with paranoid schizophrenia, the authorities did not consider it necessary to re-examine his application in order to find out whether the author would be able to receive adequate treatment for his state of health in in the light of the new diagnosis. The Committee further noted the author's claim that in the medical reports his state of health was described as life-threatening without treatment, but the authorities attached less importance to his diagnosis, since they considered that it was caused by the refusal of his asylum application (paragraph 10.5 of the Views).
Taking into account all the above factors, the Committee had to determine whether there were serious grounds to believe that, in accordance with articles 10 and 15 of the Convention, the author would face a real risk of irreparable harm if he were deported to Afghanistan, for example, whether he would face serious, rapid and irreversible deterioration of health, which would lead to severe suffering or a significant reduction in life expectancy (See the case "N.L. v. Sweden", paragraph 7.5.). The Committee noted that the parties did not dispute the author's diagnosis of post-traumatic stress disorder and the fact that he was being treated for this disease, which was assessed as life-threatening due to the risk of suicide. The Committee further drew attention to the fact that it followed from the decision of the Migration Court of 17 July 2018 that the author's diagnosis of "paranoid schizophrenia" was not questioned at the national level, but was considered not to constitute a new circumstance requiring reconsideration of the author's asylum application (paragraph 10.7 of the Views).
The Committee pointed out that there was disagreement between the parties as to whether the assessment carried out by the national authorities was in line with applicable human rights standards in relation to the author's claim that he would not be able to access adequate medical care in Afghanistan. The Committee took into account the author's arguments that the national authorities would need to re-evaluate him in the light of his diagnosis of paranoid schizophrenia and that in any case, the relevant information about the country does not confirm the position of the authorities that he will be able to receive psychiatric treatment, even in connection with his post-traumatic stress disorder. In this regard, the Committee took into account the position of the Migration Court, which found that the symptoms and functional disorders of the author, which were assessed by the Migration Court during the initial proceedings, basically coincided with the symptoms and functional disorders described in the medical reports that confirmed the diagnosis of "paranoid schizophrenia" of the author... In view of the fact that the authorities reviewing asylum applications conducted an assessment of the risks associated with the author's mental health, the Committee was unable to conclude that the refusal of the State party's authorities to conduct a separate risk analysis in the new proceedings, based on the author's new diagnosis, rejected the author's application for asylum asylum is arbitrary or amounts to a clear error or denial of justice (paragraph 10.8 of the Considerations).
In the Committee's opinion, the author has coped with the burden of proof. The national authorities were unable to dispel doubts about the existence of threats to the author if he returned to Afghanistan. In this regard, the Committee noted that the national authorities attributed the author's poor health and suicidal moods primarily to his disappointment with the outcome of the asylum application process, which apparently unreasonably reduced the weight of the author's claims regarding his diagnosis. The Committee pointed to the conclusion of the migration authorities that medical care necessary to prevent violations of the author's rights under article 15 of the Convention would be available to him upon his return to Afghanistan. This conclusion was based on reports on the general situation with the availability of health services in Afghanistan, which nevertheless indicated limited access to psychiatric care and medicines. Additional reliable sources of information on the health situation in Afghanistan, consulted by the Committee, reported a lack of trained specialists (psychiatrists, social workers and psychologists), infrastructure and understanding of the importance of mental health problems, as well as extremely limited resources for a population of more than 30 million people. The Committee noted that the national authorities had largely recognized these shortcomings, which gave serious reason to doubt the availability of medical care necessary for the author to prevent violations of his rights under article 15 of the Convention on the Rights of Persons with Disabilities... In these circumstances, the authorities of the State party were obliged to assess to what extent the author would actually have access to the necessary medical services in Afghanistan, and in case of serious doubts, to obtain sufficient individual guarantees from that State. The Committee drew attention to the State party's claims that the author's expulsion would be carried out in such a way as to minimize his suffering, in this regard, are insufficient. Therefore, the Committee considered that individual guarantees would be particularly important in the circumstances of the present case, given that the author left Afghanistan at a very young age 13 years ago and that, according to reports, returning people may face particular difficulties in accessing health services (paragraph 10.9 of the Views).
As noted above, the Committee recalled the position of the Committee against Torture and the European Court of Human Rights, according to which the burden of proof lies with the author of the communication, who must provide evidence capable of demonstrating that there are serious grounds to believe that, if expelled, he would be at real risk of ill-treatment.
In these circumstances, the Committee noted that serious doubts remain as to whether the author will actually have access to adequate medical care in order to prevent a violation of his rights under article 15 of the Convention in Afghanistan. Therefore, he was unable to conclude that the assessment of the national authorities regarding the existence of a real risk of irreparable harm to the author in his country of origin was not arbitrary.
The Committee's conclusions: The author's expulsion to Afghanistan, if carried out, would constitute a violation of his rights under article 15 of the Convention.