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 the preparation of complaints. Subsequently, the complaint was communicated to Sweden.
The Committee on the Rights of Persons with Disabilities stated that serious doubts remain as to whether the author will actually have access to adequate medical care in order to prevent violations of his rights under article 15 of the Convention on the Rights of Persons with Disabilities in Afghanistan. Since 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 arbitrary, the Committee stated that the author's expulsion to Afghanistan, if carried out, would constitute a violation of article 15 of the Convention.
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 assessment of the factual circumstances of the case: the author's allegations 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 took into account the author's argument that, although during the procedure for reviewing his asylum application, he handed over to the authorities several medical reports confirming that he had also been diagnosed with paranoid schizophrenia, however, 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 an adequate state of his health treatment in the light of the new diagnosis. The Committee noted the author's claim that the medical reports described his state of health 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 the applicant's 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. 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 and it 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: 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 took into account the author's arguments that the national authorities needed to re-evaluate him in the light of his diagnosis of paranoid schizophrenia and that, in any case, the relevant information about the country did not confirm the position of the authorities, who believed that he would 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 the 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. 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 about 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 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 issues, 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 led to doubts about 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 required medical services in Afghanistan, and in case of serious doubts, to obtain sufficient individual guarantees from that State. 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).
The Committee on the Rights of Persons with Disabilities 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 stated that serious doubts remained as to whether the author would 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, the assessment by the national authorities of the existence of a real risk of irreparable harm to the author in his country of origin was 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.