Views of the Human Rights Committee of 16 July 2018 in the case of K.H. v. Denmark (communication No. 2423/2014).
In 2014, the author of the communication was assisted in the preparation of a complaint. Subsequently, the complaint was communicated to Denmark.
Subject of the message: deportation to the Islamic Republic of Iran.
Substantive issues: threat of torture, inhuman or degrading treatment or punishment; non-refoulement.
Legal positions of the Committee: The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, where it mentions the obligation of States parties not to extradite, deport, expel or otherwise expel a person from their territory when there are serious There are grounds to believe that there is a real risk of irreparable damage within the meaning of articles 6 and 7 of the Covenant.... The Committee... Notes that such a danger must be personal (See K. v. Denmark, paragraph 7.3; P.T. Denmark, paragraph 7.2; and X v. Denmark, paragraph 9.2.) and that there is a high threshold for presenting serious grounds for determining that there is a real risk of irreparable damage (See X v. Sweden (CCPR/C/103/D/1833/2008), paragraph 5.18.). Thus, All relevant facts and circumstances must be taken into account, including the general human rights situation in the author's country of origin (See X v. Denmark, paragraph 9.2.). The Committee recalls that, as a rule, it is for the authorities of States parties to assess the facts and evidence in the case in question in order to determine the existence of such a threat (See Pillai et al. v. Canada (CCPR/C/101/D/1763/2008), para. 11.4; and Lin v. Australia (CCPR/C107/D/1957/2010), paragraph 9.3.), unless it can be established that such an assessment was manifestly arbitrary or amounted to a clear error or denial of justice (paragraph 8.3 of the Considerations) (See, for example, K. v. Denmark, paragraph 7.4.).
According to article 6 of the Covenant, "1. The right to life is an inalienable right of every human being. This right is protected by law. No one can be arbitrarily deprived of life.
- In countries that have not abolished the death penalty, death sentences may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and which does not contradict the provisions of this Covenant and the Convention on the Prevention and Punishment of the Crime of Genocide. This punishment can only be carried out in pursuance of a final sentence passed by a competent court.
- When deprivation of life constitutes a crime of genocide, it should be borne in mind that nothing in this article gives States parties to the present Covenant the right to derogate in any way from any obligations assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
- Everyone who is sentenced to death has the right to ask for clemency or commutation of sentence. Amnesty, pardon or commutation of the death sentence may be granted in all cases.
- The death sentence shall not be imposed for crimes committed by persons under the age of eighteen, and shall not be carried out against pregnant women.
- Nothing in this article may serve as a basis for postponing or preventing the abolition of the death penalty by any State party to the present Covenant."
Article 7 of the Covenant provides: "[n]no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no person should be subjected to medical or scientific experiments without his free consent."
The Committee considers that when an asylum seeker claims to have converted to another religion after the rejection of his initial application for asylum in the country of asylum, it is reasonable to conduct an in-depth study of the circumstances of the conversion by the authorities. However, it remains necessary to check whether, despite the sincerity of the conversion, there are substantial reasons to believe that such a transition may entail serious negative consequences in the country of origin and create a real risk of irreparable damage within the meaning of articles 6 and 7 of the Covenant. Therefore, even when it is concluded that the conversion referred to in the communication was insincere, the authorities must determine whether, in the existing circumstances of a particular case, the behavior and actions of an asylum seeker related to or causing the conversion, such as church attendance, baptism or participation in a parish life, have serious negative consequences in the country of origin, capable of creating for him or her a threat of irreparable damage (paragraph 8.5 of the Considerations) (See S.A.H. Denmark (CCPR/C/121/D/2419/2014), paragraph 11.8. See European Court of Human Rights, F.G. v. Sweden (application No. 43611/11), judgment of 23 March 2016, para. 156.).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's claim that, in the event of his expulsion to the Islamic Republic of Iran, there is a risk of irreparable harm to him, in violation of articles 6 and 7 of the Covenant. The Committee takes note of the author's argument that he will face persecution by the Iranian authorities because he refused to continue working for the Basij, an Iranian militia, and because he left the Islamic Republic of Iran illegally. It also takes note of the information provided by the State party on the treatment faced after their return by persons who left the Islamic Republic of Iran illegally. According to the country information on illegal departure from the Islamic Republic of Iran published by the Ministry of the Interior of the United Kingdom of Great Britain and Northern Ireland in July 2016, an Iranian citizen wishing to return to the Islamic Republic of Iran without a passport will not face any real risk of persecution for the reason that he left the country illegally and/or he was denied asylum, unless the Iranian authorities had previously noted violations on the part of the person concerned. The State party also points out that it does not consider persons who have not been granted asylum to be criminalized, since in the Islamic Republic of Iran, applying to another country for asylum is not a criminal offense for Iranians. The Committee... Takes note of the author's statement about his conversion from Islam to Christianity, including his baptism and active participation in the activities of the parish, as well as the alleged risk of persecution by his family and the authorities in the event of his expulsion to the Islamic Republic of Iran (paragraph 8.2 of the Views).
The State party refers to paragraph 5.1.2 of the report of the Ministry of the Interior (United Kingdom), entitled "Country information and guidance: Iran: Illegal exit" ("Country information and recommendations: Iran - illegal departure"), dated July 2016, which quotes the Director General for Consular Affairs of the Ministry of Foreign Affairs of the Islamic Republic of Iran, who stated that "a person who left the Islamic Republic of Iran illegally and is not listed in the list of people who cannot leave the Islamic Republic of Iran will not have problems with the authorities upon his return although it can be fined," and that "a person who has committed a crime and left the Islamic Republic of Iran illegally will be prosecuted only for a crime committed earlier, and not for illegally leaving the country." The State party also refers to paragraph 33 of the decision of the Supreme Court of Appeal (Immigration and Asylum Chamber) of the United Kingdom in the case of S.S.H. and H.R. v. Secretary of State for the Home Department, which states that a male Iranian citizen, against whom no violations by the Iranian State have been previously noted, does not face a real risk of persecution/violation of his rights under Article 3 upon his return to the Islamic Republic of Iran for the reason that he He left the Islamic Republic of Iran illegally and/or was not granted asylum. There is no such danger during interrogation upon return to the Islamic Republic of Iran and after the relevant facts have been established (i.e. illegal departure and refusal to grant asylum). In particular, there is no real danger of being prosecuted with subsequent imprisonment" (See paragraph 5.1.1 of the report "Country information and guidance: Iran: Illegal exit" ("Country information and recommendations: Iran - illegal exit"), which quotes the words of the head of the Department for the Issuance of Passports and Visas, who stressed that "Iran's Constitution allows Iranians to live wherever they want. Applying for asylum by an Iranian to another country is not a criminal offense in the Islamic Republic of Iran... Approximately 60% of Iranians who have been granted asylum in other countries travel from the Islamic Republic of Iran to other countries and back.").
"In February 2013, the author met with a woman named Z.A., who told him about Christianity. Through Z.A., he began attending Skype video conferences, during which he met the pastor and gained knowledge about Christianity. On April 8, 2013, the author was baptized. Later, in his appeal against the decision of the Danish Immigration Service, he mentioned his conversion to Christianity. On 30 May 2013, the Danish Refugee Appeals Board upheld his complaint and referred the case back to the Immigration Service" (paragraph 2.4 of the Considerations).
As the Committee notes, in the present case, it is not disputed that after establishing Skype contact with one of the priests who told him about Christianity, the author was baptized on April 8, 2013, actively participates in the activities of the parish and informed the family about his conversion. The majority of the Council members also agreed that the author has knowledge of the Christian faith. Nevertheless, the Committee notes that the majority of the Council's arguments focused on the question of whether the conversion was sincere and concluded that the author had failed to prove that his conversion was genuine, since his statements, for example, about the date of his first meeting with Z.A., The moment when he considered himself converted and the family's reaction to his conversion were inconsistent (paragraph 8.6 of the Considerations).
In this regard, the Committee recalls that States parties should take due account of the real and personal danger that a person may face in the event of deportation, and expresses the view that the State party should conduct a specific assessment of the danger that the author, who has become a Christian, will face in the Islamic Republic of Iran, and not just refer to discrepancies in dates. In particular, the Committee notes that the Danish Refugee Appeals Board has not assessed whether the behavior and actions of an asylum seeker related to or causing conversion, including his baptism, his active participation in parish life, his knowledge of Christianity and informing his family about his conversion, have serious negative consequences in the country of origin, which can create a threat of irreparable damage for him. In the light of the above, the Committee considers that the State party has failed to adequately assess the real, personal and perceived risk that the author will face upon his return to the Islamic Republic of Iran after converting to another faith. The Committee therefore considers that the State party has not taken due account of the consequences of the author's personal situation in his country of origin and concludes that his expulsion by the State party to the Islamic Republic of Iran would constitute a violation of articles 6 and 7 of the Covenant (paragraph 8.7 of the Views).