Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2115/2011 * , **

Communication submitted by:I.A.K. (represented by counsel, Niels-Erik Hansen)

Alleged victim:The author

State party:Denmark

Date of communication:1 June 2011 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 9 November 2011 (not issued in document form)

Date of adoption of Views:3 November 2016

Subject matter:Deportation from Denmark to Iraq

Procedural issues: Failure to sufficiently substantiate allegations; incompatibility ratione materiae

Substantive issues: Right to life; torture; cruel, inhuman or degrading treatment or punishment

Articles of the Covenant:2, 6, 7, 13, 14 and 26

Articles of the Optional Protocol:2 and 3

1.1The author of the communication is I.A.K., a national of Iraq born on 20 December 1980. He claims that his removal to Iraq by the State party would violate his rights under articles 2, 6, 7, 13, 14 and 26 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The author is represented by counsel.

1.2On 9 November 2011, pursuant to rule 92 of the Committee’s rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied the author’s request for interim measures to suspend his deportation to Iraq.

The facts as submitted by the author

2.1The author was born in Baghdad and is a Shia Muslim. He claims that he attended school for 12 years and was a trained electrician. However, he worked as taxi driver and as a hod carrier for his father, who was a developer. He also served with the armed forces in the Republican Guard in Kirkuk for three years and two months. He alleges that on 2 March 2010 he became a “member/sympathizer” of Hizb Al-Umma Al-Iraqiya (the Iraqi Nation Party). The author submits that the Iraqi Nation Party is a Sunni Muslim party that wanted to improve the situation in the country and promoted equality between ethnic groups in Iraq; and that its leader had good relations with Western countries, including Israel. This led Shia Muslims to perceive members of the Party as traitors. The author did not hold any visible position of political responsibility and his participation in the Party was limited to putting up about 50 election posters in Al-Huriya district, in the region of Baghdad, on 3 or 4 March 2010, along with two other members of the Party. When putting up the posters, he was attacked and beaten by seven or eight people; he could not identify the attackers but he believes that they were political opponents. He was hit with an iron baton on his back and legs. The author pushed the group leader, who fell backwards. The other members of the group threatened to kill the author. After fleeing the scene, the author went to the hospital and then to the police, where he filed a complaint. Although the police registered the complaint, the author never heard anything from the police about the incident.

2.2The author claims that he suffered three other attacks by the same group. On 18 or 20 March 2010, a bomb was placed under his car when he was visiting a friend, A.F.K., who was an important member of the Iraqi Nation Party. The author claims that when he returned to his car, he was told that unknown persons had placed an object under his vehicle. Upon his request, the police came with an explosive expert who deactivated the bomb. Afterwards, the police only asked him if he had enemies and prepared a report on the incident, without taking further steps to investigate it.

2.3 On 5 June 2010, the author’s father found a threatening letter that included a warning to those who collaborated with Jews, Zionists and Israelis. However, the author’s name was not included in the letter or on the envelope. The author reported it to the police and to the armed forces (Sixth Regiment). The army kept the letter, informed the author that an investigation would be conducted and recommended that he stay at home. The author moved to an uncle’s home and then to his brother’s home and started working as a taxi driver. However, he quit that job, since he was afraid of being attacked again.

2.4 On an unspecified date, the author moved back to his parents’ home. He submits that on 4 December 2010, a bomb exploded in front of that home, destroying it. The author, his mother and his younger brothers were in the house, but no one was killed. The author was not hurt, one of his mother’s arms was broken and his brothers suffered facial wounds. Since the house was uninhabitable, the author’s parents moved to the author’s sister’s house. The author claims that although all the incidents were reported to the authorities, the authorities did not provide any protection and were not able to identify the aggressors.

2.5On 7 February 2011, after a time hiding at his uncle’s house, the author travelled to Turkey on a false passport. He had to leave behind his parents and siblings, who were still living in Iraq when the communication was submitted to the Committee. Afterwards, the author moved to Denmark, arriving on 11 February 2011 without an entry visa. He claims that he had contacted a person to whom he paid $16,000 to bring him to a safe country. That person took the author to Denmark without requesting his consent. In fact, the author was told he would be taken to Belgium; he realized that he was in Denmark when someone informed him that he was in the Danish city of Sandholm.

2.6 On 15 February 2011, the author submitted a request for asylum to the Danish Immigration Service. He argued that he feared that his and his relatives’ lives would be in danger if he were to be returned to Iraq, since he was a member of the Iraqi Nation Party, and that between March 2010 and February 2011 he had been a victim of four attacks by unknown persons, presumably from an opposing political group.

2.7 On 25 March 2011, the Danish Immigration Service refused the author’s application for asylum under section 7 of the Aliens Act. According to the author, the Service found that his allegations were not coherent and credible. The Service had stated that his claim of being a victim of political reprisals was not proportional to his political activities. The Service had further stated that while the author had submitted 20 photographs of a bombed house, he had failed to provide evidence that the house belonged to his parents. The Service held that the author was not at risk of being prosecuted or subjected to torture, inhuman or degrading treatment or of facing the death penalty in Iraq. They noted that the author could live in the Kurdish autonomous area in northern Iraq where, according to the fact-finding report published by the Service in April 2010 and the operational guidelines of the Home Office of the United Kingdom of Great Britain and Northern Ireland, published in October 2010, any Iraqi citizen might reside safely. The Service forwarded its decision to the Refugee Appeals Board for final review of the author’s case.

2.8 At the hearing held by the Refugee Appeals Board, the author noted that after receiving the rejection from the Danish Immigration Service he had contacted the Iraqi Nation Party by telephone and asked them to send a confirmation of his membership, and that he had received the Party’s confirmation by e-mail. According to the Board, the document was dated 10 May 2011, indicated the name and address of the headquarters of the Party and that the author was an active member. It also had a stamp and the name of the secretary-general of the Party. When questioned by the Board, the author stated that, by its confirmation, the Party meant that he had been active when he was residing in Iraq and that he was not active now.

2.9 On 18 May 2011, the Refugee Appeals Board confirmed the decision of the Danish Immigration Service, and ordered the author to leave Denmark voluntarily within seven days. The Board found that the author had not been able to substantiate, in a coherent and credible manner, his alleged activities for the Iraqi Nation Party and the assaults against him and the attempts on his life, and thus the risk to which he would be exposed if returned to Iraq. The Board noted, inter alia, that the author had stated in the asylum application form that he was a member of the Party, that he later had stated in the interview with the Danish Immigration Service that he was not a member of the Party, but had merely submitted an application for membership, and that he had finally stated before the Board that he had been and continued to be a member of the party. The Board concluded that it was not credible that the author, whose active membership had lasted for only seven days and whose activities had consisted of anonymously helping to put up election posters, would have been the target of such comprehensive retaliation from political opponents. The Board pointed out that, according to his statement, the author had sustained only minor injuries from the assault that occurred on 3 or 4 March 2010. Moreover, the author had been unable to identify the persons behind the assassination attempts and the bomb explosion on 4 December 2010 and had merely assumed that they were political opponents. He was also unable to explain how those persons had managed to identify him, his car and his parents’ residence.

2.10 The author submits that he has exhausted all domestic remedies. Pursuant to section 56 (8) of the Aliens Act, asylum seekers are not allowed to appeal decisions of the Refugee Appeal Board to the Danish courts, which has been confirmed several times by the Supreme Court, and there is no other remedy available at the domestic level.

The complaint

3.1The author argues that his deportation to Iraq by the State party, in the context of the circumstances surrounding his situation in Iraq prior to his departure, would constitute a violation of his rights under articles 6 and 7 of the Covenant.

3.2 The Danish authorities did not assess adequately the risk he would be subject to if returned to Iraq. The author claims that he was never arrested or detained by the authorities; however, his life was threatened four times owing to his membership in the Iraqi Nation Party. He points out that the State party refused his claims only because his participation in the Party was limited to putting up posters for a few days, without taking into account that the Iraqi authorities had failed to provide him with protection by investigating the attacks and identifying the aggressors. The author claims that the Danish authorities failed to take into account the photographs that show how his parents’ house was damaged by the bomb of 4 December 2010 and the document issued by the Party indicating that he was a member of the Party. Furthermore, the State party’s refusal is contrary to the position expressed by the Office of the United Nations High Commissioner for Refugees (UNHCR) in its briefing notes on forced return to Iraq.

State party’s observations on admissibility and the merits

4.1On 8 May 2012, the State party provided its observations on admissibility and the merits of the communication. It maintains that the communication should be declared inadmissible for non-substantiation. Should the Committee declare the communication admissible, the State party maintains that the author’s deportation to Iraq would not be contrary to the Covenant.

4.2 The State party maintains that during the asylum proceedings, the author gave various contradictory statements concerning his affiliation with the Iraqi Nation Party in March 2010. For instance, he stated in the asylum registration report that he had been a member of the Party for 10 days only. In the asylum application form, however, he stated that he had been a member of the Party from 1 to 7 March 2010. At the interview with the Danish Immigration Service on 18 March 2011, he stated that he had become a member of the Party on 2 March 2010. Confronted with his statements, the author had said that he could not remember whether he had filled out the Party’s application form on 1 or 2 March 2010. Following the submission of his application, he became a member of the Party. To the question of whether, following its submission, his application was to have been assessed by someone , the author had replied in the affirmative. He had not become a member of the Party immediately, but had merely been recorded as an applicant. To the question of why he had stated that he had been a member for 10 days when he had only been an applicant and when the period was in fact 1 to 7 March 2010, the author stated that during the last 3 of the 10 days he had referred to he had tried to contact the friend who had given him the application form; the friend was the second or third highest ranking member in the Party. Then he stated that he had not been active in the Party since 7 March 2010. At the hearing of the Refugee Appeals Board on 18 May 2011, the author stated that he had not resigned from the Party, and that if he were in Iraq, he would still appear to be a member of the Party. Following the rejection of his application by the Danish Immigration Service, the author obtained a document dated 10 May 2011 that indicated that he was a member of the Party.

4.3 The author stated in the asylum registration report that he had been putting up election posters around town with a friend in early March 2010 when they were assaulted by 12 persons; that after the assault he had gone to the hospital and then had reported the incident to the police. At the Refugee Appeals Board hearing, he stated that he had put up about 100 posters, that after the assault he had gone to the police station and had reported the incident, and that he had then gone to the hospital. During the Board hearing, confronted with the discrepancies between the statement he made in the asylum application form that 12 persons had participated in the assault and his statement to the Danish Immigration Service, in which he indicated that 7 or 8 persons had participated, the author stated that he did not remember how many persons had participated in the assault.

4.4 As to the author’s allegation about the car bomb in March 2010, the State party points out that at the interview with the Danish Immigration Service the author stated that he did not know how the perpetrators knew that it was his car when they did not know his name. To the question of whether the friend of the author who was the second or third highest ranking member in the party had been the target of murder attempts, the author had stated that his friend had received threats but that he had not been the target of murder attempts. As regards the allegation about the threatening letter left at his parent’s home in June 2010, during the interview with the Service the author stated that he had no idea how the perpetrators would know where he lived when they did not know his name. To the question of why somebody would want to harm him when his political profile and his political work had been so limited, the author stated that he assumed that it was because he had pushed the assailants’ leader in connection with the assault on 3 or 4 March 2010. The State party further notes that the author did not explain in detail why more than two months passed between the incident in December 2010 and his departure from Iraq.

4.5 The State party points out that the Refugee Appeals Board found that the author had not been able to substantiate, in a coherent and credible manner, his alleged activities for the Iraqi Nation Party and the assaults and assassination attempts against him, and thus the risk to which he would be exposed upon his return to his country of origin. The Board had pointed out inconsistences in the author’s accounts regarding his alleged membership in the Party, namely, with regard to his joining the Party and the duration of his membership and whether he remains a member of the party, as well as inconsistencies with respect to the experiences that he allegedly went through in Iraq, prior to his departure, owing to his affiliation to the Party (see paras. 2.9 and 4.2-4.4 above). The State party further submits that the questions of whether the author was a member of the Iraqi Nation Party, and if so, during what period, are thus arguable.

4.6 The State party provided a detailed description of the asylum proceedings under the Aliens Act and the Refugee Appeals Board decision-making process and functioning.

4.7Should the Committee declare the communication admissible, the State party maintains that articles 6 and 7 of the Covenant would not be violated if the author were to be returned to Iraq. The Refugee Appeals Board conducted a comprehensive and thorough examination of the evidence in the case. It made its decision under section 7 (2) of the Aliens Act on the basis of a specific and individual assessment of the author’s motive for seeking asylum combined with the background knowledge on the general situation in Iraq and the specific details of the case.

4.8 The State party maintains that the author is in fact trying to use the Committee as an appellate body to have the factual circumstances advocated in support of his claim of asylum reassessed by the Committee. In this regard, the State party submits that the Committee must give considerable weight to the findings of the Refugee Appeals Board, which is better placed to assess the findings of fact in the author’s case.

4.9 The State party submits that the Board included all relevant information in its decision of 18 May 2011, including the document produced to confirm the author’s membership in the Iraqi Nation Party. The omission of an explicit reference to a specific document in the reasoning of the Board’s decision does not mean that the document was not included in the basis of the examination of the case. The documents produced by the author were referred to at the Board’s hearing and were included in the deliberations. However, the Board did not accept the author’s statement about his reason for applying for asylum, as the statement seemed incoherent, expansive and not credible. As to the author’s reference to the recommendations of UNHCR, the State party maintains that those recommendations are an essential part of the background information when a specific and individual assessment of each case is made.

4.10The State party maintains that, over all, it appears unlikely that the author, whose active membership in the Iraqi Nation Party lasted only seven days and consisted only in anonymously helping to put up election posters, would have been the target of such comprehensive retaliation from political opponents as described by him during the asylum proceedings. The State party relies on the assessment made by the Refugee Appeals Board that it does not appear credible that the author, as a rank-and-file party member and in the light of his limited political activities, would have been persecuted to such a degree as stated by the author.

4.11The State party points out that the author has also changed and added details to his statement on other points in connection with the proceedings before the Danish authorities. Neither in the asylum registration report nor in the asylum application form did the author state that he had sought the protection of the Iraqi authorities. By contrast, the author recounted in detail during the interview with the Danish Immigration Service and at the Refugee Appeals Board hearing how he had reported to the police both the assassination attempts and the threatening letter. As regards the author’s allegation that as a Shia Muslim and member of a Sunni Muslim party he was considered a traitor by other Shia Muslims, the State party submits that during the proceedings the author did not state at any time that he risked persecution due to his religious beliefs if he were to be returned to Iraq.

Author’s comments on the State party’s observations

5.1On 11 July 2012, the author submitted his comments on the State party’s observations and reiterated his allegations of violations of articles 6 and 7 of the Covenant. At the time the author’s comments were submitted to the Committee, the author continued to remain on the State party’s territory.

5.2 The author argues that the State party also violated his rights under articles 13 and 14 of the Covenant, since the denial by the Refugee Appeals Board of his asylum request cannot be appealed before a court. He also argues that one of the three Board members is an employee of the Ministry of Justice. Although that member may act in an impartial and independent manner, the asylum seeker may perceive his actions otherwise.

5.3 The Board’s decision and its procedure constitute discrimination against asylum seekers, in violation of articles 2 and 26 of the Covenant. The author points out that, under the law of the State party, decisions by administrative bodies, except those taken by the Refugee Appeals Board, can be appealed before courts. Moreover, since an asylum application is examined and decided by the Danish Immigration Service in a short period of time, it cannot be concluded that the Service carries out a thorough examination of the request. Thus, in practice, the Board is the first instance that closely examines the allegations submitted by an asylum seeker.

5.4 The author claims that he had only approximately two to three months to prepare for the Board hearing and that this reduced his ability to provide evidence or offer witnesses within the asylum proceedings, violating his right to fair procedure. He submits that the asylum application he submitted to the Danish authorities had included photographs of his car and his parents’ home after the bombing in December 2010, which were not taken into account in the Board’s assessment. Also, while the State party refers to the contents of the document issued by the Iraqi Nation Party, dated 10 May 2011, that confirmed the author’s membership, it has not stated whether it considers the document a forgery. The author thus argues that in its decision the Board was focused on the inconsistences of his oral and written statements and that it denied his asylum request without assessing adequately the documentary evidence he had submitted. He submits that his accounts were consistent regarding the core part of his allegations.

5.5 The author notes that although he was not subjected to torture in Iraq prior to his departure, he had been a victim of attacks by persons who allegedly belonged to a political group opposed to the Iraqi Nation Party; those attacks had put his life at risk in a context in which the Iraqi authorities could not provide him with protection.

Additional information submitted by the State party and by the author

6. On 19 October 2012, the State party submitted additional information to the Committee and reiterated its previous observations. It maintained that the author’s return to Iraq would not constitute a violation of his rights under articles 2, 6, 7, 13, 14 and 26 of the Covenant

7. On 4 December 2012, the author reiterated his allegations that asylum seekers cannot have access to courts, since decisions of the Refugee Appeals Board are final and cannot be appealed. He claims that during the Board hearings, the Board members posed a number of questions to him in a hostile manner that gave him the feeling that they were not impartial.

8.1On 15 June 2015, the State party submitted additional information. It maintains that the author’s allegations of violations of articles 2, 6, 7, 13, and 26 of the Covenant are inadmissible as manifestly unsubstantiated.

8.2 The State party submits that the author’s allegations under article 14 of the Covenant are inadmissible ratione materiae. It further states that the Refugee Appeals Board is an independent, expert board of a quasi-judicial nature, that the Chairman of the Board is a judge, that the Board’s proceedings are oral, and that applicants who come before the Board are represented by counsel.

8.3 The Board’s decision cannot be appealed and therefore its assessment of evidence is not subject to review. Aliens may, however, by virtue of the Constitution of Denmark, bring an appeal before the ordinary courts, which have authority to adjudicate any matter concerning the limits to the competence of a public authority. As established by the Supreme Court, the ordinary courts’ review of the decisions of the Board is limited to a review of legal issues. Such issues include defects in the basis of the decision, procedural errors, unlawful exercise of discretion and disqualification of Board members. The author has not brought any such proceedings concerning legal issues before the Danish courts.

Issues and proceedings before the Committee

Consideration of admissibility

9.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether the communication is admissible under the Optional Protocol.

9.2The Committee has ascertained, as required under article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under another procedure of international investigation or settlement.

9.3The Committee recalls its jurisprudence, in which it has stated that authors of communications must exhaust all domestic remedies in order to fulfil the requirement of article 5 (2) (b) of the Optional Protocol, insofar as such remedies appear to be effective in the given case and are de facto available to the author. The Committee notes that the author unsuccessfully appealed the negative asylum decision before the Refugee Appeals Board and that the State party does not challenge the exhaustion of domestic remedies by the author. The Committee, therefore, considers that it is not prevented from considering the present communication under article 5 (2) (b) of the Optional Protocol.

9.4As to the author’s claim under article 2 of the Covenant in relation to the expulsion decision, the Committee recalls its jurisprudence, which indicates that the provisions of article 2 of the Convention, which lay down general obligations for State parties, cannot, when invoked in and of themselves, give rise to a claim in a communication under the Optional Protocol. The Committee therefore considers that the author’s claims in that regard are inadmissible under article 2 of the Optional Protocol.

9.5The Committee notes the author’s claims that the decisions of the Refugee Appeals Board are the only decisions that are final without possibility of appeal before the national courts; that he had limited time to prepare his application and submit evidence; that the Board lacks impartiality and independence, since one member is an employee of the Ministry of Justice; that during the Board hearings, Board members posed questions to him in a hostile manner; and that the State party has thus violated his rights under articles 13 and 14 of the Covenant. In that regard, the Committee refers to its jurisprudence, in which it has stated that proceedings relating to the expulsion of aliens do not fall within the ambit of a determination of “rights and obligations in a suit at law” within the meaning of article 14 (1), but are governed by article 13 of the Covenant. Article 13 of the Covenant offers some of the protection afforded under article 14 of the Covenant, but not the right of appeal. The Committee therefore considers that the author’s claim under article 14 is inadmissible ratione materiae pursuant to article 3 of the Optional Protocol.

9.6 With regard to the author’s claims under article 13, the Committee also takes note of the State party’s arguments that the author’s asylum proceedings were conducted in conformity with the law; that he was able to submit evidence and clarify his statements; that the Refugee Appeals Board is an independent, expert board of a quasi-judicial nature, whose Chairman is a judge, and before which the applicant is represented by counsel; and that the Board is under obligation to bring out the facts and make objectively correct decisions. The Committee observes that the author was afforded an opportunity to submit and challenge evidence concerning his removal and that the author took the opportunity, under domestic law, to have his asylum application examined by the Danish Immigration Service and reviewed by the Refugee Appeals Board. Consequently, the Committee considers that the author has not sufficiently substantiated his claim for purposes of admissibility and that this part of the communication must therefore be declared inadmissible in accordance with article 2 of the Optional Protocol.

9.7The Committee notes the author’s claims under articles 26 of the Covenant that the decision of the Refugee Appeals Board and its procedure constitute discrimination against asylum seekers, since decisions by administrative bodies, except those taken by the Board, can be appealed before courts pursuant to the State party’s law. The Committee, however, considers that the author has failed to sufficiently substantiate his claims under article 26 and declares this part of the communication inadmissible pursuant to article 2 of the Optional Protocol.

9.8 The Committee notes that the author’s allegation under articles 6 and 7 of the Covenant, that if returned to Iraq, he would be at risk of being killed or tortured as a result of his alleged past membership to the Iraqi Nation Party, the attacks he allegedly suffered prior to his departure in Iraq by political opponents, and the failure of the Iraqi authorities to provide him with protection. The Committee also takes note of the State party’s argument that the author’s claims under articles 6 and 7 are not substantiated.

9.9The Committee recalls paragraph 12 of its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, in which the Committee 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 articles 6 and 7 of the Covenant. 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 further 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 or evaluate facts and evidence in order to determine whether such risk exists, unless it is found that the evaluation was clearly arbitrary or amounted to a manifest error or to a denial of justice.

9.10In the present case, the Committee observes that the author’s claims rely mainly on the alleged lack of assessment by the authorities of the documentary evidence submitted by him in the asylum proceedings, in particular, the photographs that show a bombed house allegedly belonging to his parents and a document issued by the Iraqi Nation Party on 10 May 2011, which allegedly corroborated his membership in the Party. The Committee observes that in its decision of 18 May 2011, the Refugee Appeals Board took note of the allegations raised by the author before the State party’s authorities, including the asylum registration report prepared by the aliens division of the Danish immigration police, his asylum application form, his statements in the interview with the Danish Immigration Service and at the Board hearing, as well as the documentation submitted by him in support of his claims. Yet it found that the author had not been able to substantiate, in a coherent and credible manner, his alleged activities for the Iraqi Nation Party, the assaults on him and the attempts on his life, and thus the risk to which he would be exposed if returned to Iraq. The author disagrees with the Board’s decision. However, he has failed to explain why this decision is manifestly unreasonable or arbitrary, for instance owing to the failure to take properly into account a relevant risk factor. Moreover, the author has not pointed to any procedural irregularities in the decision-making procedure by the Danish Immigration Service or the Refugee Appeals Board. Accordingly, the Committee considers that the author has not sufficiently substantiated the allegations under articles 6 and 7 of the Covenant for the purposes of admissibility and finds these claims inadmissible under article 2 of the Optional Protocol.

10.The Committee therefore decides:

(a)That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;

(b)That the decision be transmitted to the State party and to the author.