The case of N.L. v. Sweden. Views of the Committee on the Rights of Persons with Disabilities dated August 28, 2020. Message No. 60/2019.
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 Views, the author claimed that by deporting her to Iraq, the State party would violate her rights under articles 10 and 15 of the Convention, since her expulsion would lead to a serious risk of suicide, as well as other serious threats to her life and health (POINT 7.6 of the Views).
The Committee's legal position: According to article 10 of the Convention on the Rights of Persons with Disabilities, States parties are obliged to affirm that everyone has an inalienable right to life and States parties shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others. In accordance with article 15 of the Convention, States parties are obliged to ensure that they 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 7.2 of the Views).
The Committee notes the conclusions of the Human Rights Committee contained in its general comment No. 31 (2004), in which it considers the obligations of States parties not to extradite, deport, expel or otherwise expel a person from their territory when there are substantial grounds to believe that there is a real risk of irreparable harm, such as is provided for in articles 6 and 7 of the International Covenant on Civil and Political Rights of December 16, 1966. The Human Rights Committee, in its previous decisions, indicated that the danger should threaten a person personally (the case of "X. v. Denmark" (CCPR/C/110/D/2007/2010), paragraph 9.2.) and that a high threshold should be applied to establish the existence of a real risk of irreparable harm (Ibid.; and the case "X. Sweden" (CCPR/C/103/D/1833/2008), para. 5.18.). Thus, it is necessary to take into account all relevant facts and circumstances, including the general human rights situation in the author's country of origin (Ibid.). In its legal practice, the Human Rights Committee has emphasized, the Committee on the Rights of Persons with Disabilities has drawn the attention of the Committee on the Rights of Persons with Disabilities, that considerable weight should be given to the assessment carried out by the State, and that, as a rule, it is up to the 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 a threat The assessment was clearly arbitrary or amounted to an obvious error or denial of justice (paragraph 7.3 of the Considerations) (See, for example, the case of "K. v. Denmark" (CCPR/C/114/D/2393/2014), paragraph 7.4; and the case of C.H. v. Australia (CCPR/C/107/D/1957/2010), paragraph 9.3.).
The Committee took note of the conclusions of the Human Rights Committee in the case of Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark, in which the Human Rights Committee recalled that States parties should take sufficient account of the real and personal danger that a person may face in the event of expulsion. In addition, it considered that the State party was obliged to conduct an individual assessment of the threat to which the authors might be exposed in the event of their expulsion, including access to appropriate medical care (The case of Abdilafir Abubakar Ali and Mayul Ali Mohamad v. Denmark (CCPR/C/116/D/2409/2014), clause 7.8.). The Committee further took note of the conclusions of the Committee against Torture in the Adam Harun v. Switzerland case, where the Committee indicated that the failure of the State party's authorities to carry out an individual assessment of the personal and real danger to which the complainant would be exposed if he were expelled, with due regard to his particular vulnerability, including his state of health, constituted a violation Article 3 of the Convention against Torture and Other Cruel, inhuman or degrading treatment or punishment of 10 December 1984 (paragraph 7.4 of the Views) (Adam Harun v. Switzerland (CAT/C/65/D/758/2016), paragraphs 9.7 - 9.11.).
The Committee took note of the judicial decisions of the European Court of Human Rights in the Paposhvili v. Belgium case (European Court of Human Rights, Paposhvili v. Belgium case, Application No. 41738/10, Judgment of December 13, 2016, paragraphs 173-174. See also, the European Court of Human Rights, Savran v. Denmark, Application No. 57467/15, Judgment of October 1, 2019, in which the Court ruled that the expulsion of the applicant to Turkey without the Danish authorities receiving sufficient and individual assurances of his care in Turkey would be a violation of Article 3 of the European Convention on Human Rights.) In which the Court noted that the expulsion of a person in need of permanent medical care may in "very exceptional cases" raise an issue in accordance with article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of November 4, 1950. The Court pointed out that this should be understood as a question concerning situations involving the expulsion of a seriously ill person, when there are substantial grounds to believe that although he or she is not at immediate risk of death, but due to the lack of appropriate treatment in the host country or lack of access to such treatment, he or she will face a real risk of being subjected to serious, rapid and irreversible deterioration of health, which will lead to severe suffering or a significant reduction in life expectancy. The Court considered that it was up to the applicant to provide evidence demonstrating that there were substantial grounds to believe that in the event of his expulsion he would be at real risk of ill-treatment. If such evidence is presented, it is up to the authorities of the returning State, in the context of national procedures, to dispel any doubts by considering the projected consequences of expulsion for the person concerned in the receiving State in the light of the general situation in that State and the personal circumstances of that person. Therefore, when assessing the risk, it is necessary to take into account both general sources (such as reports from the World Health Organization or reputable non-governmental organizations) and medical opinions concerning the person concerned (European Court of Human Rights, Paposhvili v. Belgium, paragraphs 183-187.). Regarding the factors to be taken into account, the Court stated that the authorities of the returning State should, on a case-by-case basis, check whether the care available in the receiving State is, as a rule, sufficient and acceptable in practice for the treatment of the applicant's illness. The authorities should also consider the extent to which the person in question will actually have access to care and facilities in the host State (paragraph 7.5 of the Considerations) (Ibid., paragraphs 189-190.).
The Committee's assessment of the factual circumstances of the case: The Committee took note of the author's claims that by deporting her to Iraq, the State party would violate her rights under articles 10 and 15 of the Convention on the Rights of Persons with Disabilities, since her expulsion would lead to a serious risk of suicide, as well as other serious threats to her life and health. The Committee noted her information that she had been diagnosed with severe depression with psychotic symptoms and that she had been treated twice in accordance with the Law on Compulsory Psychiatric Care (after experiencing hallucinations, having suicidal thoughts and committing suicide). He took note of her argument that she had submitted several medical reports to the national authorities confirming that she had been diagnosed with a long-term mental illness for which she would not be able to receive treatment if she was deported to Iraq. The Committee further took into account her argument that in the medical reports she submitted, her state of health was described as life-threatening in the absence of treatment, and the risk of relapse without proper care was assessed as serious (paragraph 7.6 of the Considerations).
The Committee should therefore have determined whether there were serious grounds to believe that, if the author were to be deported to Iraq, she would face a real risk of irreparable harm, as provided for in articles 10 and 15 of the Convention on the Rights of Persons with Disabilities. The Committee noted that the parties did not dispute that the author had been diagnosed with depression. Several medical reports submitted by the author to the national authorities indicated that she was being treated for severe depression. According to experts, this included the risk of severe or life-threatening complications. At the same time, the treatment she was undergoing was deemed necessary, and the risk of relapse in the absence of proper care was assessed as serious. The Committee found out the following: the parties disagreed on the severity of the author's health condition and whether it was prolonged in nature, and took note of the State party's argument that, according to the assessment of the national authorities, her poor health and thoughts of suicide are primarily related to her disappointment with the process of reviewing her applications for asylum, the uncertainty of her situation and her fears of being expelled from the country. However, the Committee considered that, given that the author had submitted several medical reports to the national authorities, where her state of health was assessed as serious and life-threatening and that without treatment for the diseases she was receiving in the State party, the authorities of the State party should, in the light of information received during the internal investigation to assess whether the author will actually be able to access adequate medical care in the event of her expulsion to Iraq. The Committee noted that the parties did not dispute the fact that the national authorities had not assessed whether the author would be able to access such medical care in Iraq. The Committee therefore considered that the failure of the national authorities to assess this risk that the author might face, in the light of the information available to them about the author's state of health, amounted to a violation of her rights under article 15 of the Convention (paragraph 7.8 of the Views).
The Committee's conclusions: The State party has not fulfilled its obligations under article 15 of the Convention.