Human Rights Committee

Views adopted by the Committee under article 5 (4) of the Optional Protocol, concerning communication No. 2632/2015 * , ** , ***

Communication submitted by:O, P, Q, R and S

Alleged victims:The authors

State party:Sweden

Date of communication:16 June 2015 (initial submission)

Document references:Decision taken pursuant to rule 92 of the Committee’s rules of procedure, transmitted to the State party on 15 July 2015 (not issued in document form)

Date of adoption of Views:15 March 2022

Subject matter:Deportation to Albania

Procedural issues:Same matter examined under another procedure of international investigation or settlement;exhaustion of domestic remedies; substantiation of claims

Substantive issue:Non-refoulement

Articles of the Covenant:2 and 7

Articles of the Optional Protocol:2 and5 (2) (a) and (b)

1.1The authors of the communication are O, born on 12 November 1966, P, born on 24 April 1972, and their children, Q, born on 28 September 1992, R, born on 29 August 1994, and S, born on 12 October 1998, all nationals of Albania. The authors claim that the State party violated their rights under article 7, read alone and in conjunction with article 2, of the Covenant. The Optional Protocol to the Covenant entered into force for Sweden on 23 March 1976. The authors are not represented by counsel.

1.2On 15 July 2015, the Committee registered the communication on behalf of O and S and decided not to issue a request for interim measures under the Committee’s rules of procedure. On 15 January 2016, following a new submission and request for interim measures, the Committee decided to add authors P, Q and R to the registered communication, and it requested the State party to refrain from deporting the authors to Albania while their case was under consideration by the Committee.

1.3On 23 December 2015, the State party challenged the admissibility of the communication under articles 3 and 5 (2) (a) and (b) of the Optional Protocol and requested that the Committee take a separate decision on admissibility. On 14 March 2016, the authors submitted comments on the State party’s request. On 1 July 2016, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to examine the admissibility of the communication together with its merits.

1.4On 2 May 2017, the Committee decided to suspend consideration of the communication until the second set of asylum proceedings were decided. The Committee indicated that the request for interim measures remained valid while the case was suspended. On 29 July, 25 September and 9 October 2019, the authors requested the Committee to lift the suspension of the communication’s consideration. The State party did not object to this request. On 29 September 2020, the Committee, acting through its Special Rapporteur on new communications and interim measures, decided to lift the suspension.

1.5On 22 and 23 September 2021, the authors requested interim measures of protection because their work permits had been cancelled. On 24 September 2021, the Committee, acting through its Special Rapporteur on new communications and interim measures, rejected the request for interim measures of protection.

Factual background

2.1O is a poet and journalist. In 2004, O’s nephew was killed by X, an Albanian criminal who is well-known in Germany. X is involved in serious criminal offences and was on an unknown date arrested in Italy, but managed to escape. With a view to obtaining justice for his nephew’s death, O allegedly conducted an investigation and discovered X’s whereabouts in Albania. On 6 February 2008, he reported X’s location to the Albanian police. This information led to X’s arrest on 6 March 2008. The authors claim that X discovered that O had informed the police of his whereabouts. From that moment, the authors began receiving death threats. Before fleeing Albania, an unknown man visited R at school and made threats against O. The authors consider that they are in danger of retaliation from X and organized crime networks.

2.2The authors submit that, while investigating the murder of his nephew, O discovered a network of high-level corruption in Albania, involving a former prime minister and a current member of the parliament, and wrote a book about it. The authors further claim that they have received threatening letters and emails in Sweden sent by individuals in Albania. The authors indicate that those threats have caused mental health issues for the entire family, in particular for O, who became depressed and suicidal (see para. 2.8 below).

First set of asylum proceedings

2.3On 1 June 2011, O, P, R and S requested asylum in Sweden. On 4 August 2011, the Swedish Migration Agency rejected the authors’ asylum request. Even though the Agency appears to recognize that X is an internationally recognized criminal, it considered that the authors had not demonstrated that the Albanian authorities would not protect them against him.

2.4Q arrived in Sweden in August 2011, and requested asylum on 14 October 2011. She stated that she did not come to Sweden with her family, as she had been on a student trip in Kosovo when they left. When she returned to the family’s house to get her passport, she found a letter containing threats against the family. In addition, the neighbours told her that several people had been asking about O’s whereabouts. On 29 December 2011, the Agency rejected Q’s asylum request, indicating that she had not demonstrated that she would be denied protection by the Albanian authorities.

2.5Between August and October 2011, O discovered that his computer and some of his files had been stolen from the family’s house in Albania. The computer contained a draft of O’s book on corruption in the Government of Albania.

2.6The authors jointly appealed the decisions of the Swedish Migration Agency to the Migration Court. On 4 May 2012, the Court rejected the appeal. It considered that the authors had not demonstrated an objective risk. Although the Court indicated that it had no doubts regarding X’s existence and his criminal record, including his involvement in the killing of O’s nephew, it considered that it was not credible that X would invest so much effort in persecuting the family as, according to the authors, he was wanted by the International Criminal Police Organization (Interpol). Moreover, the Court found it strange that O did not refer to his book during the original interviews with the Swedish Migration Agency. Even if this could be explained by the fact that the computer was stolen after the Agency’s decision, the Court considered that O’s explanations regarding the computer’s content were vague.

2.7On 25 May 2012, the authors requested permission to appeal to the Migration Court of Appeal. They indicated that they had complied with the standard of proof applicable to asylum cases in which private individuals were at the origin of the risk, as they had provided evidence on the existence of those individuals, their criminal records and their links to the authorities, which demonstrated that the authorities would not be able to provide them with effective protection. The authors also provided their accounts and documentary evidence of the threats they had received, and indicated that the asylum authorities were in a better position to secure information from the Albanian authorities than they were, as they had had to flee the country because of the risk they faced there. On 9 September 2012, the authors provided the Migration Court with a statement from an Albanian writer, indicating that he had been visited by two armed individuals who had threatened him and had asked about O’s whereabouts and his book. On 25 September 2012, the Court rejected the authors’ request, considering that the conditions for granting permission to appeal had not been met.

2.8In January 2013, a threatening message directed against S and her family was left on the voicemail of S’s school. On 22 August 2013, after O had published extracts from his book on his blog in July 2013, the headmaster of S’s school received a threatening letter addressed to S with a live ammunition cartridge. On both occasions, the authors were relocated by the Swedish police. The authors further submit that, on 20 July 2013, their house in Albania was blown up. Moreover, they indicate that the mental health of O and S had deteriorated and that they had been interned in a psychiatric hospital for “extensive periods” due to suicide attempts.

2.9Following these developments, the authors made several requests for a fresh assessment of their asylum proceedings between January and September 2013. All their requests were rejected by the Swedish Migration Agency, as well as their subsequent appeals to the Migration Court and the Migration Court of Appeal. These decisions indicate that fresh assessments can be only granted when the conditions established in chapter 12 (18) and (19) of the Aliens Act are complied with. According to these provisions, only new circumstances that constitute an obstacle to the execution of the removal can be invoked. Moreover, those circumstances need to be permanent, and the petitioners need to demonstrate that they were not able to submit them before or to provide a valid excuse. The authorities considered that the new developments submitted by the authors could not be considered as new, as they were additions to the grounds of asylum that had already been analysed. In relation to the claims related to O’s mental health, it was indicated that the medical certificate submitted by the authors did not fulfil certain conditions established in the domestic legislation, including the lack of an independent assessment of O’s mental health, the lack of a future prognosis of his care needs and the lack of detailed information about the examinations carried out. It was further considered that the certificate was largely based on O’s own account, and it was therefore granted a low evidentiary value. Furthermore, the courts indicated that the remaining submissions about the authors’ mental health conditions could not be considered when determining if they should be granted a fresh assessment of their right to a residence permit.

2.10The authors appealed the last refusal by the Migration Court to grant a fresh assessment, in light of the bombing of the family’s house in Albania, the threats received at S’s school and O’s blog post of July 2013. On 11 September 2013, the Migration Court of Appeal rejected the authors’ request on the grounds that the family’s expulsion rendered the proceedings moot.

2.11On the same date, the authors were deported to Albania. They indicate that upon arrival, O was detained and kept in solitary confinement for two days during which he was subjected to torture and ill-treatment. The rest of the family went to Kosovo and O joined them once he was released. In October 2013, during a trip to the family’s bombed-out house in Albania to look for some valuables, O was tied up and beaten by two men who later abandoned him in a field. He recognized the voices of the men as those of the police officers who had detained him upon his arrival in Albania. O was found by a farmer who took him to a medical centre. On a second trip to Albania, on 12 December 2013, a taxi in which O was travelling was shot at. The incident was reported to the police

2.12The authors returned to Sweden in 2014. As they could not submit a new asylum request given that their expulsion order would be in force until 25 September 2016, they requested a fresh assessment from the Swedish Migration Agency of their entitlement to a residence permit on 16 April 2014. They informed the Agency about what had happened in Albania after they had been deported and recalled the threats received in Sweden between July and August 2013 (see paras. 2.8 and 2.10 above). On 19 June 2014, the Agency rejected the request. It considered that most of the claims submitted were additions to those already analysed during the asylum proceedings. Regarding the incidents that occurred in Albania after their deportation, the Agency considered that the authors’ allegations lacked credibility. In particular, concerning O’s allegations of torture and ill-treatment during detention, the Agency indicated that O’s account was very vague and that it was not supported by any evidence. With respect to O’s alleged assault at the family’s house, the Agency considered that the pictures and medical certificate provided did not indicate what caused the injuries, and that O’s statement that the perpetrators were police officers was mere speculation. In relation to the incident in the taxi, the Agency indicated that no evidence had been provided on how or why the incident took place, nor any evidence to indicate that the authorities had no intention to investigate – on the contrary, the authors had provided a police report on the incident. Finally, regarding the allegations that the threats and attacks were related to O’s blog, the Agency indicated that these facts could not be considered as a new circumstance. The authors appealed this decision to the Migration Court which rejected their request on 1 August 2014. The Court echoed the arguments set out by the Agency. The Court refused the authors permission to appeal on 9 September 2014.

2.13In March 2015, the authors submitted a complaint to the European Court of Human Rights, alleging that the State party had violated their right to due process, and that their possible expulsion to Albania would violate their rights under the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights). On 24 March 2015, the European Court declared the complaint inadmissible.

Second set of asylum proceedings

2.14On 10 November 2016, once the expulsion order against the authors was no longer in force, the authors submitted new requests for asylum. On 22 December 2017, the Swedish Migration Agency rejected all of them on similar grounds to those in its previous decision. The Agency found no reason to change the assessment of the claims analysed during the first set of asylum proceedings, as they had been found to lack credibility; but it conducted an assessment of those claims that had not previously been examined, including the threatening voice message received by S’s school on 22 January 2013; the blowing up of the family’s house on 20 July 2013; the threatening letter accompanied by a live cartridge received by S’s school on 22 August 2013; the attack suffered by O in the family’s bombed-out house on 8 October 2013; and the alleged link between O’s blog and an Organization for Security and Cooperation in Europe (OSCE) report.

2.15In relation to the threatening voicemail, the Agency indicated that, although it did not question the seriousness of the threat that was made from Albania, it was not clear from the recording who made it or why the person threatened to kill the family. Therefore, even though it provided some support to the family’s account, it could not prove the existence of the threat that the family asserted. In relation to the blowing up of the family’s house, the Agency stated that the documentary evidence provided by the authors – Albanian press articles and a written statement by the chairman of the town where the house was located – had low probative value, as it consisted of copies of documents. Regarding the threatening letter accompanied by a live cartridge, the Agency did not question that it had been received; however, it considered that it had a low probative value, as it was not clear who sent it and if it was related to O’s blog. Concerning the medical certificate proving the attack suffered by O on 8 October 2013, the Agency indicated that it had low probative value because it was a copy. Regarding the pictures related to the same incident, the Agency considered that they did not prove who the perpetrator was or how O’s wounds had been inflicted. As for the claim that an OSCE report was based on O’s blog, the Agency stated that the information provided by the authors was vague.

2.16The Swedish Migration Agency took note of the report on Albania by the European Asylum Support Office, according to which the Government of Albania had mechanisms to investigate and punish abuse and corruption and its law enforcement capabilities “continue to improve”. The Agency considered that the Albanian authorities had the capacity and were willing to prosecute criminal acts. It affirmed that there was nothing that indicated that the assaults and threats suffered by the authors would not be investigated and punished, or that such attacks had been sanctioned by the State. The Agency further maintained that, as the authors had not reported the attacks and threats to the Albanian authorities, they had not taken the steps required before seeking international protection.

2.17The authors appealed the Swedish Migration Agency’s decisions to the Migration Court. The Court rejected the appeal on 28 January 2019. The Court endorsed the Agency’s assessment regarding the authors’ claims during the first set of asylum proceedings. Regarding the claims made during the second set of asylum proceedings, the Court indicated that it was necessary to assess if the actions of the Albanian authorities made it plausible that there was a concrete and current threat emanating from the Government of Albania. The Court concluded that this was not the case, even taking into account the allegations of O’s detention and ill-treatment upon his return to Albania, noting that not every detention of an asylum-seeker constituted persecution, although it could be considered as such if it was part of a series of persecutions. However, in O’s case, the Court found that no other element in his account supported such a conclusion. In relation to the authors’ claims that O’s blog was used as the basis for an OSCE report, the Court indicated that even though there were similarities in the content of both, they were general, and there was no reasonable explanation as to why the Albanian authorities would act on general information. In relation to the claim that police officers attacked O at the family’s house, the Court indicated that the police officers should be investigated by Albania and that there were reports indicating that the People’s Advocate of Albania (Ombudsman) was acting upon complaints against police officers. Regarding the authors’ argument that the decision issued by the European Court of Human Rights in J.K. and others v. Sweden was applicable to their case, the Court stated that the authors were in a very different situation. Therefore, they still had to prove that the Albanian authorities would be unable or unwilling to protect them, which they had failed to do, as they had not even sought protection from them.

2.18On 21 May 2019, the Migration Court of Appeal decided not to grant leave to appeal and the decision to expel the authors became final. However, on 13 June 2019 the Swedish Refugee Agency decided to stay the enforcement of the order, in compliance with the Committee’s request for interim measures.

2.19In August 2019, S requested a work permit. On an unknown date, the State party’s authorities rejected S’s request and revoked the work permits of all the authors.

Complaint

3.1The authors argue that the decisions taken during the first set of asylum proceedings violate article 7, read in conjunction with article 2, of the Covenant. They allege that the State party applies an unreasonably high standard of proof to asylum requests, as applicants must establish a 75 per cent probability of the alleged risks materializing. This is contrary to the Committee’s jurisprudence, establishing that a risk of ill-treatment must only be real, the jurisprudence of the European Court of Human Rights, which establishes a standard of proof requiring a greater than 50 per cent probability that the risk will materialize, and to case law in certain countries.

3.2The authors submit that the refusal to translate several documents in Albanian submitted by them on the criminality, corruption and revenge culture in Albania, on the grounds that the State party’s authorities had all the information they needed, constitutes another violation of article 7 of the Covenant. The authors further submit that the repeated refusal to grant them a fresh assessment of their asylum requests between September 2012 and September 2013 constituted a violation of the same provision of the Covenant. This violation is more flagrant taking into account the incidents that occurred during this period. The authors consider that by considering these facts as “mere additions or modifications”, the State party breached the principle that there must be an assessment of the evidence available at the moment in which the authority takes the decision. The authors further indicate that the events referred to were the kind of evidence that demonstrated that the risk they were facing was real. The authors add that the violation of their rights during the first set of proceedings was exacerbated by the systematic refusal to grant them legal aid and several requests for oral hearings.

3.3The authors further submit that the State party also violated article 7, read in conjunction with article 2, of the Covenant as a result of the rejection by the Migration Court of Appeal of their last request for a fresh assessment – on the basis of the threats sent to S’s school and the bombing of the family’s house – on the grounds that it became moot upon the authors’ expulsion.

3.4The authors also indicate that the State party violated article 7, read in conjunction with article 2, of the Covenant for not granting a fresh assessment of their asylum request once they returned to Sweden in 2014. The authors argue that, as the decisions of 2014 excluded any analysis of the allegations submitted by them, on the grounds that they had already been assessed, the same mistakes committed during the first set of asylum proceedings were repeated. The authors also allege that the analysis made by the authorities of the medical report submitted in relation to O’s attack by two men in the family’s house violated the same provisions of the Covenant. They affirm that no medical report would indicate who provoked the injuries or for what reason. If the State party had doubts regarding the medical report, it should have ordered an independent expert medical opinion. Regarding O’s allegations of torture and ill-treatment while being kept in solitary confinement upon his return to Albania, the authors indicate that the assessment that O’s allegations lacked credibility was incorrect. He provided his account with as many details as could be expected from someone subjected to torture and ill-treatment. In addition, his request for an oral hearing to better explain the circumstances of these events was rejected.

3.5The authors maintain that the Migration Court committed several mistakes in its decision of 28 January 2019. First, regarding the Court’s assessment of the threat received on the voicemail of S’s school, the authors indicate that it was impossible for them to identify who made the call. It was sufficient that the Swedish police found that the call was made from Albania, that the police reported the incident to the Albanian Embassy and that the report did not trigger an investigation. Regarding the assessment of the evidence submitted in relation to the blowing up of the family’s house in Albania, the authors indicate that they submitted the original testimonial by the Chairman of town B, and not a copy as the Court stated. Concerning the assessment of the medical certificate related to the incident of 8 October 2013, the authors indicate that they provided the original certificate and that the content was very “professional”. Regarding the assessment of the OSCE report and the ways in which it coincided with O’s blog, the authors state that none of these are of a general nature, as they provide detailed information on crimes committed by specific persons in the Government of Albania.

3.6The authors further indicate that the Migration Court violated their rights, as it did not follow a principle established by the European Court of Human Rights according to which the burden of proof is reversed when the State party argues that the country of origin’s authorities were able to provide protection. The authors refer to a case of an Albanian citizen deported from Sweden in 2015 on the basis that he would be able to seek protection from the Albanian authorities, and who was subsequently killed. The authors indicate that they fear the same fate, and that the Migration Court violated their rights by rejecting the request to disclose previous cases in which Albanian nationals had been granted asylum on the basis that the Albanian authorities would not be able to protect them.

3.7Regarding the general information on the human rights situation in Albania, the authors indicate that the State party refused to translate several documents that demonstrated that the Albanian authorities would not be able to protect them, including extracts of O’s book. Moreover, the authorities did not indicate on what information they based their assessment that the authors would be able to seek such protection, in particular as, according to the State party’s own reports, journalists reporting on organized crime and whistle-blowers may not receive any protection. The authors also indicate that they have demonstrated that the Albanian authorities will not protect them. They refer to a report made by a relative of O to the Albanian police regarding threats received in connection with O’s writings. The Albanian police did not open an investigation and stated that they did not have enough resources to investigate that kind of incident.

3.8The authors also indicate that the extent of corruption in Albania makes it difficult to identify if the threats and attacks against them emanate from organized crime networks or from State agents, or a combination of both. Regarding X, they state that the Swedish authorities recognized that he was an international criminal, that he killed O’s nephew and that they genuinely feared him. In addition, there is evidence that O provided information to the Albanian police which led to X’s arrest. Regarding the risk from Albanian State agents, the authors indicate that there is evidence of endemic corruption, organized crime and revenge culture in Albanian society. They refer to a report by the Swedish Ministry for Foreign Affairs according to which weak institutions often linked to organized crime creates a void of protection for citizens, in particular victims of organized crime and journalists who investigate corruption. They also indicate that, according to the same report, police officers do not enforce the law equally and there is impunity for violations. Therefore, it is clear that the Albanian authorities will not be able to protect the authors. This is consistent with the evidence provided, specially the blowing up of the family’s house and the torture and ill-treatment suffered by O.

3.9The authors also indicate that the State party would violate article 7 of the Covenant if it deports them to Albania. They refer to the Committee’s jurisprudence according to which expulsions to countries where there is a risk of torture and ill-treatment from private actors and the authorities are unwilling or unable to provide effective protection would constitute a violation of the Covenant.

3.10Moreover, the authors indicate that the revocation of the work permits of all the family members, following the end of the second set of asylum proceedings, constitutes another violation of their rights under the Covenant. The authors indicate that they are not able to provide for their basic needs. This has caused the authors great anxiety and stress, which – combined with the long asylum proceedings and the uncertainty in relation to their status – has caused them important psychological damage. Moreover, the authors consider that the cancellation of the work permits was in reprisal for presenting the communication to the Committee.

State party’s observations on admissibility

4.1On 23 December 2015, the State party provided its observations on the admissibility of the communication. It submits that the authors have previously lodged an application with the European Court of Human Rights and that their complaint should therefore be found inadmissible under article 5 (2) (a) of the Optional Protocol. The State party recalls the Committee’s jurisprudence wherein it has held that the “same matter” referred to in article 5 (2) (a) must be understood as relating to the same parties, facts and substantive rights. The State party considers that the complaint submitted by the same authors to the European Court and to the Committee refer to the same matter, as both relate to alleged violations of due process during the asylum proceedings. In addition, both complaints include allegations of a risk of torture or ill-treatment if returned to their country of origin.

4.2The State party further notes that the European Court of Human Rights declared the authors’ application inadmissible, since it found that the criteria in articles 34 and 35 of the European Convention on Human Rights had not been met. The State party notes that there is nothing in the authors’ submission that indicates that their application to the European Court did not fulfil the criteria established by article 34, as the decision concerning the authors’ expulsion had gained legal force and they had exhausted domestic remedies in September 2012, before they submitted their application. It further contends that the authors’ submissions do not include any information indicating that the grounds for inadmissibility established in article 35 (2) (a) and (b) of the European Convention would be applicable. Consequently, the only remaining grounds upon which the European Court could reject the admissibility of the author’s application are those established in article 35 (3) (a) and (b) of the European Convention. The State party submits that, from the wording of that Convention, it is clear that an assessment of these grounds must involve a sufficient consideration of the merits of the case. Therefore, the State party considers that the European Court of Human Rights must have declared the authors’ application inadmissible on substantial grounds.

4.3The State party further indicates that the communication is incompatible with the provisions of the Covenant, as it has not reached a minimum level of substantiation. The State party refers to the Committee’s jurisprudence according to which the risk must be personal, and establishing a high threshold for providing substantial grounds that a real risk of irreparable harm exists. In these circumstances, a great weight must be given to the State’s assessment. The State party also refers to the Committee’s jurisprudence that indicates that it is generally for the State party’s authorities to evaluate the facts and evidence in a case, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. The State party indicates that the authors’ claims have been thoroughly examined and considers that there is no reason to believe that the domestic proceedings were in any way arbitrary or amounted to a denial of justice.

4.4In reference to the authors’ claims related to the OSCE report, the State party indicates that the report is not personally related to the authors’ case, and that it has not been brought before the domestic authorities as no request for a fresh assessment has been made in this regard. Therefore, it considers that the authors have not exhausted the domestic remedies in relation to this claim. The State party also indicates that the authors can submit a complaint against Albania, as they have received death threats there.

4.5On 8 September 2016, the State party requested the Committee to declare the communication inadmissible, because it considered that it was incompatible ratione personae with the Covenant, as once the expulsion order became non-enforceable on 25 September 2016 the authors no longer had victim status. The State party explains that, as the decision by the Migration Court of Appeal of 25 September 2012 is now time-barred, the authors can no longer be deported and have the possibility of submitting a new request for asylum. Such a request would be examined by the Swedish Migration Agency and its decisions would be subject to appeal. The State party adds that the new asylum proceedings constitute an effective remedy and that in case the authors choose not to use it, their communication would be inadmissible for lack of exhaustion of domestic remedies.

Authors’ comments on the State party’s observations on admissibility

5.1The authors provided their comments on the State party’s observations on 14 March 2016. They do not consider that their communication has already been examined by the European Court of Human Rights, as it did not provide any reasoning in its decision of 24 March 2015. The authors refer to the Committee’s jurisprudence establishing that even an inadmissibility decision of the European Court of Human Rights based on the merits cannot render a complaint inadmissible before the Committee, if the decision was not accompanied by reasons.

5.2In relation to the State party’s argument that the communication does not reach a minimum level of substantiation, the authors contest the State party’s claim that its authorities thoroughly examined their asylum request. They argue that their case highlights systemic flaws in the State party’s asylum application procedure, including the high standard of proof required in relation to the risk faced, the authorities’ failure to secure translation of key evidence and the rejection of several requests for a fresh examination of the asylum request based on new circumstances constituting a proof of the risk faced by the family in Albania, in particular, the undisputed death threats received against them by S’s school and the bombing of the authors’ home.

5.3The authors note that the State party has not contested that they have exhausted the domestic remedies, except for their claims in relation to the OSCE report. They indicate that, given that the authorities have consistently rejected all their requests for fresh assessments, asking that they exhaust such remedy for the OSCE report seems unreasonable. Regarding the State party’s argument that they should have submitted a communication against Albania, they submit that such an argument breaches a principle of international law according to which persons at risk of persecution in their home country cannot be placed at risk by having the contents of their claims disclosed to the alleged perpetrators. They reiterate that the risk is related to O’s publication of information regarding the links between the Government and organized crime.

5.4On 19 October 2016, the authors provided their comments on the State party’s observations of 8 September 2016. They indicate that the communication concerns not only the violations related to the future risk of deportation but also the violations that have already occurred. The fact that the deportation order was time-barred on 25 September 2016 could not offer any remedy regarding those latter violations. In addition, given that these violations have already taken place, the authors’ victim status should not be affected. Moreover, they indicate that the fact that the expulsion order became time-barred does not mean that they are not at risk of expulsion. They refer to a letter by the Swedish Migration Agency to P dated 17 October 2016, which states that she must submit a new asylum request or she will be deported.

5.5In relation to the argument that a new effective remedy emerged on 25 September 2016, the authors indicate that such a remedy was unreasonably prolonged. Moreover, they claim that they doubt that this remedy would be effective, given the systematic refusal to apply an appropriate standard of proof when assessing their future risk, and taking into account the State party’s “lack of cooperativeness”, as for several months they were not granted any subsistence payments. The authors further indicate that they will lodge a new application for asylum out of fear of being deported or losing their subsistence payments.

State party’s observations on the merits

6.1On 26 June 2020, the State party reiterated that the communication is manifestly unfounded. Regarding the merits, it recalls the Committee’s jurisprudence according to which a risk of irreparable harm in the country of origin must be real. This means that the risk must be a necessary and foreseeable consequence of the deportation, and that it must be personal. The State party further indicates that there is a high threshold for establishing that a real risk of irreparable harm exists, and that the burden of proof rests with the authors, who should demonstrate that there is a real risk of irreparable harm if expelled.

6.2The State party reiterates that it is generally for the State party’s authorities to evaluate the facts and evidence in a case, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice. It further reiterates that the authors’ requests for asylum have been thoroughly examined. The State party affirms that, according to the Committee’s jurisprudence, the decisions issued by the domestic authorities should be given great weight, as there is no reason to conclude that they were inadequate, arbitrary or amounted to a manifest error or denial of justice.

Authors’ comments on the State party’s observations on the merits

7.1On 31 December 2020, the authors submitted their comments on the State party’s observations on the merits. They indicate that the authorities of the State party made an arbitrary assessment of the facts and evidence submitted by them during the two sets of asylum proceedings, which amounted to a denial of justice. They refer to a decision of the Migration Court dated 16 June 2018, which rejected their requests to translate numerous documents provided by them, as well as their requests to hold oral hearings, including in relation to the new threats received in March 2018. They allege that the Court has not provided any reasons for these rejections, making it impossible for them to challenge it. The authors consider that such rejections violated their right to an effective remedy under the Covenant.

7.2The authors challenge the State party’s affirmation that the information on O’s blog is general. They indicate that O has established that X and other members of organized crime networks were “soldiers” of Albanian politicians. O has also reported that members of organized crime networks have become politicians themselves. Moreover, O has published a list of corrupt politicians and business people. The authors reiterate that O has accused the President of Albania of ordering two murders and that the publication of that information puts O and his family at great risk if deported. The authors add that the organization PEN International, a non-governmental organization that defends freedom of expression, has conducted research on O and has confirmed his story.

7.3The authors also refer to country reports on Albania according to which all branches of government are affected by corruption, there is significant impunity and important restrictions on freedom of expression and intimidation of journalists exist. The authors highlight that the prosecution of high-level crimes remained rare due to investigators’ fear of retribution. In addition, several attacks against journalist were recently reported. The authors also indicate that the fact that the State party has granted refugee status to 269 Albanian applicants since 2008, out of which 10 were journalists, implies that the State party recognizes that the Albanian authorities constitute either a threat to the applicants, or that they lack the capacity or willingness to protect persons at risk.

7.4The authors further allege that they have been subjected to two complex, lengthy and arbitrary sets of asylum proceedings, which have caused them psychological suffering. They have not been able to develop their personal and professional interests, in particular Q, R and S, who arrived as teenagers and now have become adults with no prospects for the future. They have grown up in poverty and have suffered from anxiety due to the possibility of being deported.

State party’s additional observations

8.On 12 August 2021, the State party indicated that it maintained its position. Regarding the authors’ claim that they were not granted an oral hearing before the decision of 28 January 2019, it stated that oral hearings were a mere supplement to the written proceedings. Therefore, the decision mentioned could not be considered as inadequate.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claim contained in a communication, the Committee must, in accordance with rule 97 of its rules of procedure, decide whether it is admissible under the Optional Protocol.

9.2The Committee notes the State party’s argument that the authors have lodged an application with the European Court of Human Rights and that their complaint should therefore be held inadmissible under article 5 (2) (a) of the Optional Protocol. It also notes the State party’s affirmation that the Committee’s jurisprudence on what constitutes “the same matter” is applicable to the present case, as the same authors submitted a complaint to the European Court of Human Rights on the same issues invoked before the Committee. The Committee further notes the State party’s submission that the European Court of Human Rights must have declared the authors’ application inadmissible on substantial grounds, based on its decision of 24 March 2015. It also notes the authors’ argument that, according to the Committee’s jurisprudence, their communication has not been examined by the European Court of Human Rights, as its decision was not accompanied by any reasoning.

9.3The Committee notes the State party’s reservation to article 5 (2) (a) of the Optional Protocol and recalls its jurisprudence, according to which the same matter has been “examined” within the meaning of that provision when the European Court of Human Rights has based a declaration of inadmissibility not solely on procedural grounds but on reasons that include a certain consideration of the merits of the case. The Committee notes that, on 24 March 2015, the authors’ application to the European Court of Human Rights was rejected by the Court, sitting in a single-judge formation, as inadmissible, on the basis of the general assertion that the criteria established in articles 34 and 35 of the European Convention on Human Rights had not been met. Therefore, it considers that the conditions established in article 5 (2) (a) of the Optional Protocol do not constitute an obstacle to the examination of the authors’ claims.

9.4The Committee notes the State party’s argument that the authors have not exhausted the domestic remedies regarding the OSCE report because no request for a fresh assessment was made in that regard. The Committee also notes the authors’ argument that to make such a request was unreasonable, taking into account that all their requests of this kind were rejected. The Committee observes that the authors’ requests for a fresh assessment were repeatedly rejected because they were considered as mere additions to the grounds of asylum which had already been analysed. The Committee recalls its jurisprudence that, although there is no obligation to exhaust domestic remedies if they have no chance of being successful, authors of communications must exercise due diligence in the pursuit of available remedies. The Committee observes that the authors exercised due diligence in relation to the requests for a fresh assessment and that they had reasons to believe that such a request in relation to the OSCE report had no chance of being successful; therefore, it considers that article 5 (2) (b) of the Optional Protocol does not constitute an obstacle to the admissibility of this claim. Furthermore, the Committee observes that the State party has not contested that the authors have exhausted the domestic remedies in relation to the remaining claims. The Committee also observes that the authors’ claim that the revocation of their work permits constitutes a violation of their rights under the Covenant was not brought before the State party’s authorities. Accordingly, the Committee decides that it is not precluded from considering the authors’ claim under article 5 (2) (b) of the Optional Protocol, except with regard to the authors’ claim concerning the revocation of their work permits.

9.5The Committee notes the State party’s challenge to the admissibility of the communication on the ground that the authors’ claims under article 7 of the Covenant are unsubstantiated. However, the Committee considers that such claims have been sufficiently substantiated and should be considered on the merits. Accordingly, the Committee declares the communication admissible insofar as it raises issues under article 7 of the Covenant, and proceeds to its consideration on the merits.

Consideration of the merits

9.6The Committee has considered the communication in the light of all the information submitted to it by the parties, in accordance with article 5 (1) of the Optional Protocol.

9.7The Committee notes the authors’ claim that the decisions on their case highlight systemic flaws in the State party’s asylum proceedings, including the high standard of proof required in relation to the risk faced by applicants, in particular regarding the authors’ allegations related to the threats received in Sweden, the bombing of their house in Albania and the attacks suffered by O there, after deportation. The Committee also notes the State party’s argument that the authors failed to provide a minimum level of substantiation for their communication, as required under the Covenant, as they did not demonstrate that the risk was real, personal and a necessary and foreseeable consequence of the deportation.

9.8The 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 irreparable harm, such as that contemplated by article 7 of the Covenant, which prohibits cruel, inhuman or degrading treatment. The Committee has also indicated that the risk must be personal and that the threshold for providing substantial grounds to establish that a real risk of irreparable harm exists is high. The Committee also recalls its jurisprudence that considerable weight should be given to the assessment conducted by the State party, and that it is generally for the organs of the States parties to the Covenant to review and evaluate the facts and evidence in order to determine whether such a risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a denial of justice.

9.9The Committee notes that the decision of the Swedish Migration Agency of 22 December 2017 considered that the threatening call to S’s school could not prove the existence of the threat alleged by the authors, as it was impossible to identify who made the call; that the statement by the Chairman of town B had a low probative value as it was a copy; that the medical certificate related to the attack suffered by O on 8 October 2013 had a low probative value as it was a copy; and that the threatening letter accompanied by a live cartridge received at S’s school had a low probative value because it was not clear who sent it, or if it was related to O’s blog posts. The Committee also notes that the decision of the Migration Court of 28 January 2019 endorsed the Agency’s assessment in its decision of 22 December 2017.

9.10The Committee notes that the State party does not challenge that the authors’ house in Albania was blown up, or the fact that O was the object of an attack on 8 October 2013. The Committee also notes the authors’ affirmation to the domestic authorities that the State party’s asylum authorities were in a better position to secure information from the Albanian authorities than they were, as they had fled the country because of the risks they encountered there. The Committee further notes that the State party does not explain why it considers that because the documents submitted by the authors to support their claims are considered to be copies, they should be qualified as of low probative value. It notes that the State party did not take any action to verify the authenticity of the documents provided by the authors in support of their claim. In this regard, the Committee observes that asylum seekers often face difficulties when collecting evidence abroad. The Committee further notes that the State party does not refer to the press article submitted by the authors to prove that their house was blown up.

9.11The Committee notes that the State party’s authorities considered that the two threats received at S’s school did not provide sufficient support to the authors’ claims, as it was not clear who made them, why the persons who made them threatened to kill the family or if they were related to O’s blog. However, the Committee notes that the State party’s authorities did not challenge the existence or the seriousness of such threats and that the authors were even relocated by the Swedish police twice. The Committee further notes that the State party’s authorities recognized that at least one of the threats received at S’s school “provided some support to the family’s account”.

9.12The Committee observes that, during the two sets of asylum proceedings, the authors submitted several documents and other evidence in order to demonstrate the risk they would face if deported to Albania, including supporting documentation demonstrating that they were the object of threats and attacks, and that their house had been blown up. The Committee also notes that the State party’s authorities relied on inconsistencies in the authors’ accounts and did not take any action to verify the authors’ claims, limiting themselves to indicating that the evidence presented was not sufficient and that the authors did not seek the protection of Albanian authorities. The Committee considers that, in the particular circumstances of the present case, any inconsistences found by the State party did not exempt the State party from taking other reasonable measures to remove doubts concerning the risk faced by the authors if deported to their country of origin that could result in circumstances incompatible with article 7 of the Covenant. The Committee therefore considers that, in these particular circumstances, and taking into account the information and evidence before it, the assessment of the authors’ claims by the State party was clearly arbitrary and that the authors’ removal to Albania would amount to a violation of article 7 of the Covenant.

10.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the deportation of the authors to Albania would violate their rights under article 7 of the Covenant.

11.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 review the authors’ claims, 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 authors to Albania while their requests for asylum are under reconsideration.

12.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 when it has been determined that a violation has occurred, 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 language of the State party.

Annex

Joint opinion of Committee members Marcia V.J. Kran, Photini Pazartzis, VasilkaSancin and ImeruTamerat Yigezu (dissenting)

1.We would reach a different conclusion than the majority did when they found the removal of the authors to Albania, if implemented, would violate their rights under article 7 of the Covenant.

2.At issue in this case is whether the assessment by the State party of the authors’ situation was clearly arbitrary, or amounted to a manifest error or denial of justice.

3.The Committee’s longstanding jurisprudence has established that it is generally for the State party to analyse the facts and evidence of the case in question to determine whether there is a real risk of irreparable harm were the authors to be removed from the State party’s territory. The analysis of the State party is thus required to consist of an individualized assessment of the risk to the author if removed. In general, there is a high threshold to prove that the risk is personal, for which the onus lies on the authors. Furthermore, weight should be given to the assessment conducted by the State party unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice. This deferential approach reflects the Committee’s practice in considering communications on the basis of the written information provided by the author and the State party. The Committee is not in a position to conduct its own independent verification of the facts but rather places due weight on the assessment by the State party.

4.The majority asserts that the claim by the authors has been sufficiently substantiated for the purposes of admissibility (para. 9.5). However, the Committee’s jurisprudence notes that the principle of minimal substantiation requires that the risk to the authors must be more than a theoretical possibility.

5.In this case, the State party has analysed and considered the information and evidence before it during the two asylum proceedings and, in our view, has met the requirements set out in this Committee’s jurisprudence. The Swedish Migration Agency rejected the author’s first asylum request because the authors did not provide sufficient information to demonstrate that they would not be protected in Albania (para. 2.3). This decision was appealed to the Migration Court, which dismissed the appeal because the authors did not demonstrate an objective risk (para. 2.6). This decision was appealed by the authors to the Migration Court of Appeal and again dismissed (para. 2.7). After this set of decisions, the authors requested fresh assessments of their asylum requests, which were denied as their request for fresh proceedings did not meet the threshold under the domestic legislation, the Aliens Act (para. 2.9). The authors were deported in 2013 under an expulsion order (para. 2.12).

6.The authors then returned to Sweden and waited for the expiration of the expulsion order before requesting a second set of asylum proceedings, in which their claims were again fully considered, but rejected, with the State party concluding the authors’ claims lacked credibility (para. 2.14). Consistent with its requirement to consider the human rights situation in the country of origin, in making its determination, the State party relied on credible reports from the European Asylum Support Office according to which the Albanian authorities have mechanisms for punishing corruption and are willing to prosecute criminal acts (para. 2.16).

7.During these proceedings, the authors repeatedly claimed to provide the State party with information demonstrating personal risk (paras. 2.7 and 2.9). However, in each assessment of the authors’ claims, the State party concluded that the information did not establish a real and personal risk of irreparable harm if the authors were to be deported to Albania. This conclusion was reached by competent national authorities after a thorough and individual examination of the facts. Moreover, each time the State party’s authorities reached their conclusions, the authors were provided with reasons. The authors have not demonstrated that the assessment of their asylum applications by the national authorities was clearly arbitrary or amounted to a manifest error or denial of justice.

8.In accordance with the deference given to the assessment in this case by domestic authorities, which have adequately considered and decided that no individualized risk that could not be addressed by the State of origin exists, we conclude that the authors have not provided adequate information to minimally substantiate their claim that the domestic authorities have acted in a clearly arbitrary manner in the evaluation of the evidence or in the interpretation of national legislation, or that they have manifestly erred in their assessments of whether the deportation would constitute a violation of article 7 of the Covenant.

9.We are therefore of the view that the authors have not sufficiently substantiated their claims and would have found that the claims were inadmissible under article 3 of the Optional Protocol.