Human Rights Committee

Views adopted by the Committee under article 5 (4) ofthe Optional Protocol, concerning communication No. 2595/2015 * , **

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

Alleged victim:The author

State party:Denmark

Date of communication:8 April 2015 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 9 April 2015 (not issued in document form)

Date of adoption of Views:22 March 2018

Subject matter:Deportation from Denmark to Egypt

Procedural issue :Level of substantiation of claims

Substantive issues:Risk to life and of torture or ill-treatment upon forced removal to country of origin

Articles of the Covenant :6 and 7

Article of the Optional Protocol:2

1.1The author of the communication is A.A., a national of Egypt born in 1988. The author is subject to deportation to Egypt following the rejection of his application for asylum by the Danish Refugee Appeals Board on 4 March 2015. He claims that his deportation would amount to a violation by Denmark of his rights under articles 6 and 7 of the Covenant. The Optional Protocol entered into force for Denmark on 23 March 1976. The author is represented by counsel.

1.2On 9 April 2015, pursuant to rule 92 of its rules of procedure, the Committee, acting through its Special Rapporteur on new communications and interim measures, requested the State party not to deport the author to Egypt while his case was under consideration by the Committee. On 13 April 2015, the Refugee Appeals Board suspended his deportation from the State party until further notice, in compliance with the Committee’s request.

1.3On 25 July 2017, the Committee, acting through its Special Rapporteur on new communications and interim measures, denied a request by the State party to lift the interim measures.

Factual background

2.1The author was born in 1988 in Egypt. Military service is compulsory for men between 18 and 30 years of age in Egypt and there are no alternatives to compulsory military service. The author was called up for military service in late 2008 or early 2009. He did not want to perform military service as this might have involved killing civilians. He had also heard stories from others about how hard it was to be in the army. His brother had been killed while serving in the Egyptian army and he did not want to suffer the same fate. He therefore went into hiding in the mountains on a plot of land owned by his family, close to his family home. In the period from 2008 to 2014, he regularly received military service call-up papers, which stated that he could be brought before a military court if he failed to report for duty. Sometimes the police would come to his parents’ house to inquire as to his whereabouts.

2.2At the beginning of 2011, he left Egypt and travelled to Italy, where he applied for asylum. However, his request was denied and he was returned to Egypt. He was returned from Italy on a flight to Cairo. He was not escorted by the Italian authorities and he managed to evade passport control at the airport in Cairo by bribing an airport employee and exiting through a side door.

2.3The author stayed at his parents’ house for a few days. However, he was afraid that the authorities would find out that he had returned, so he went back into hiding at his family’s plot in the mountains. One month later, the police visited his parents’ home, stating that they were aware that the author had returned, and asked about his whereabouts. The police detained the author’s father, as he refused to inform the police about the author’s whereabouts. The author’s father was later charged with being affiliated with the Muslim Brotherhood. About 15–20 days after the police had detained his father, the author encountered about 10 members of the Muslim Brotherhood in the mountains where he was hiding. They invited him to become a member of the organization. He was afraid to refuse immediately and responded that he would consider it. Five days later, the members approached him again and asked why he had not contacted them. They requested the author to go with them and showed him a small cave in which they had hidden their weapons. They asked him to carry a small bag and place it under a car, in order to blow up the car. The author again replied that he would think it over. However, he was afraid of the group and he therefore decided to leave Egypt again. About two months later, he managed to find an agent, who helped him travel to Europe via Libya. He arrived in Denmark on 6 December 2013 and applied for asylum. His application for asylum was rejected by the Danish Immigration Service on 22 December 2014 and he appealed the decision to the Refugee Appeals Board.

2.4In its decision of 4 March 2015, the Refugee Appeals Board noted that, as his grounds for asylum, the author had referred to his fear of being detained and sentenced to imprisonment in case he was returned to Egypt because he had evaded military service. He had also referred to his fear of being accused by the Egyptian authorities of affiliation with the Muslim Brotherhood and, as a result, of being sentenced to imprisonment for 10–15 years. Finally, the author had referred to his fear of being killed by representatives of the Muslim Brotherhood in case of his return to Egypt because of his refusal to join the organization. The Board found that the author had made vague and inconsistent statements on several points relating to the events prior to his entry into Denmark. It noted that the author’s statement that he had first been called up for military service at the age of about 20 was inconsistent with the background information available. It further noted that, in a statement to the Immigration Service, the author had indicated that he had been issued with a passport in 2008 without the knowledge of the military authorities, which would have been required for a male over the age of 18. The Board therefore concluded that it could be assumed that the authorities had accepted the issuance of the author’s passport and his departure. The Board found that it could not consider the author’s alleged conflict with the Egyptian authorities about his call-up for military service to be a fact. The Board also found that the applicant had made vague and unlikely statements to the effect that he could live on the property in the mountains for several years without the authorities being able to establish contact with him. Therefore, the Board found that the copy of the military service call-up papers submitted by the author to the Immigration Service could not be accorded any weight.

2.5Regarding the author’s claim that he also feared the Muslim Brotherhood, the Board found that the claim that the organization had tried to recruit him after his return from Italy appeared to be fabricated. It found it unlikely that representatives of the organization would show their arsenal to the author, who was a stranger to them, and it noted that, according to background information, the Muslim Brotherhood recruited persons who were already followers of its ideology and that recruitment primarily took place at educational establishments. The Board concluded that it did not find the author’s claims that he was wanted by the authorities owing to his evasion of military service or his being affiliated with the Muslim Brotherhood to be credible, nor did it find his claim that he was at risk of harm from the Muslim Brotherhood to be credible.

2.6In his complaint, the author also refers to a memorandum by the Danish Ministry of Foreign Affairs provided to the Immigration Service on the penalties for draft evasion in Egypt, dated 26 August 2014. The memorandum states that it is not possible for draft evaders to leave the country legally, since no male over the age of 18 would be issued with a passport or permitted to leave the country without a certificate from the military granting permission to leave the country while drafted or granting an exemption from military service. The memorandum further notes that the penalty for draft evasion under the Military Conscription Law No. 127 of 1980 depends on the situation and the age of the person. If the draft evader is under 30 years of age and simply failed to appear for the medical examination or did not submit documentation to confirm his military status upon turning 18, the penalty is one extra year of service. If the draft evader is 30 years of age in the same situation, the penalty is no less than a two-year sentence of imprisonment and/or a fine of 2,000 to 5,000 Egyptian pounds (approximately $100–300). According to the Military Prosecutor’s Office, the common practice in such cases is to hold a quick hearing in a military court and impose a fine ranging from 2,200 to 2,300 Egyptian pounds (approximately $125), but not a prison sentence. If the draft evader submitted fraudulent documents in order to avoid conscription, the penalty imposed under article 50 of the Military Conscription Law is three to seven years’ imprisonment. There is no specific penalty prescribed in the Military Conscription Law for avoiding conscription by leaving the country. According to the Military Prosecutor’s Office, this could fall either under article 50, with a penalty of three to seven years’ imprisonment, or under article 54, which pertains to “other violations” and prescribes a penalty of a minimum of two years’ imprisonment and/or a fine of 200 to 500 Egyptian pounds (approximately $10–30). However, depending on the case, the defendant could also be subject to stricter provisions set out in the Penal Code for civilians if the Military Prosecutor seeks the assistance of the General Prosecutor. According to the Military Prosecutor’s Office, in cases of repeated draft evasion, the evader is punished under article 50 of the Military Conscription Law by no less than seven years’ imprisonment. However, the Military Prosecutor could seek the assistance of the General Prosecutor, in which case the draft evader would be classified as “wanted” by the authorities and a “stricter” penalty could be applied in accordance with the Penal Code. According to the Military Prosecutor’s Office, the penalty for draft evasion is normally enforced.

The complaint

3.The author claims that his deportation to Egypt would violate his rights under articles 6 and 7 of the Covenant. He argues that there are only very limited possibilities for exemption from military service in Egypt, none of which are applicable in his case. Additionally, Egypt does not allow for alternative military service for those who object to military service on the grounds of religious or other personal convictions. The author claims that, if returned to Egypt, he would be at risk of being sentenced to two to seven years of imprisonment for failure to perform his military service. He further claims that he would be at risk of torture and forced military service.

State party’s observations on admissibility and the merits

4.1In its observations dated 9 October 2015, the State party submits that the communication should be declared inadmissible under article 2 of the Optional Protocol and rule 96 (b) of the Committee’s rules of procedure for failure to substantiate the claims for the purposes of admissibility. In the alternative, should the Committee find the communication to be admissible, the State party submits that the complaint is without merit.

4.2The State party provides a detailed description of the asylum proceedings under the Danish Aliens Act and of the organization and competence of the Refugee Appeals Board. Decisions of the Board are based on an individual and specific assessment of the relevant case. The asylum seeker’s statements regarding his or her grounds for seeking asylum are assessed in the light of all relevant evidence, including what is known about conditions in the country of origin. The Board is responsible not only for examining and bringing out information on the specific facts of the case, but also for providing necessary background material, including information on the situation in the asylum seeker’s country of origin or first country of asylum.

4.3The State party observes that the author has not provided any new information on his situation since information was provided on 4 March 2015, when the Refugee Appeals Board decided the appeal. It notes that, in its decision, the Board rejected in its entirety the author’s claim that he was wanted by the authorities owing to his evasion of military service or to a suspicion that he had carried out activities for the Muslim Brotherhood, and that he had been threatened by the Muslim Brotherhood because he had refused to join the organization. It notes that the Board assessed that the author had failed to substantiate his grounds for asylum, since he had made vague and inconsistent statements on several points relating to events in his country of origin, and elements of his statements were inconsistent with the background information on the situation in Egypt or otherwise appeared to be fabricated or unlikely.

4.4Regarding the inconsistencies in the author’s statements, the State party refers to the author’s assertion that, prior to his first departure from Egypt, he hid in the mountains until his departure, while he later said that he had lived both in the mountains and with a friend or friends. The State party further notes that, in interviews conducted by the Danish Immigration Service on 3 February 2014 and 5 May 2014, the author stated that he had left Egypt in March 2011, while at the hearing of the appeal before the Refugee Appeals Board on 4 March 2015, he stated that he had left Egypt in January 2011. It also notes that, at the interview conducted on 3 February 2014, the author stated that he had handed over his passport to the Italian authorities when applying for asylum in Italy and that the passport had not been returned to him, while at the hearing of the appeal before the Refugee Appeals Board, he stated that he had handed over his passport to a human trafficker in Libya when leaving Egypt in 2011 and that the trafficker had not returned the passport to him. The State party also notes that, at the interview on 5 May 2014, the author stated that he had managed to avoid immigration control by bribing an employee and leaving the airport through a side door into the baggage reclaim area, while at the interview on 25 June 2014, he stated that the employee had taken him into an area where passengers were waiting for their flight. The State party further notes that, at the interview conducted on 3 February 2014, the author stated that he had not brought any travel documents with him from Italy to Egypt. However, at the interview conducted on 5 May 2014, he stated that he had been given a travel document when landing in Cairo, while at the hearing before the Refugee Appeals Board, he stated that he had received documents when boarding the plane on his departure from Italy. Finally, the State party argues that the author has made inconsistent statements on the financing of his departure from Egypt in 2013. It notes that, at the interview on 5 May 2014, the author stated that he had handed over some land to his friend to finance the travel. The author’s friend had paid an agent $7,000 to take the author to Italy and had given the author an additional $2,000. However, at the hearing before the Refugee Appeals Board, the author stated that his friend had contacted a human trafficker, whom he had paid $7,000 to help the author, while the trafficker had given the author $2,000 for his journey.

4.5The State party further argues that on several points, the author’s statements are inconsistent with the background information available on the situation in Egypt. In that regard, the author has stated that he was first called up for military service at the age of about 20. However, according to the memorandum prepared by the Ministry of Foreign Affairs and a report published by the Australian Refugee Review Tribunal, men must clarify their military service status upon turning 18. Furthermore, it appears from another report by the Refugee Review Tribunal that Egyptian men have to perform military service upon reaching 18 years of age, and that military service can only be postponed if certain conditions are met. The State party further notes that the author stated that he was issued with a passport around 2008 or 2009 without the knowledge of the military authorities, and that he also stated that he was not exempted from military service, even though his brother had been killed while performing his military service. The State party argues that this is inconsistent with available background information. It refers to the memorandum of the Ministry of Foreign Affairs, according to which no Egyptian male over the age of 18 can be issued with a passport or leave the country without a certificate from the military allowing him to leave the country while drafted, or granting him an exemption. According to the memorandum, exemption from military service is granted for “the eldest eligible (for service) son or brother of an officer or conscript or volunteer who died or was severely injured during service in a manner that prevents them (the injured) indefinitely from providing an income”. The State party argues that the author is therefore not under an obligation to perform military service in Egypt, as his brother died while performing military service. It argues that this explains why it would have been possible for the author to have been issued with a passport by the Egyptian authorities.

4.6The State party notes that the author has also stated that representatives of the Muslim Brotherhood attempted to recruit him and showed him their arsenal. It argues that this is inconsistent with the background information available. According to a report published by the Washington Institute, the recruitment procedure of the Brotherhood is very selective and careful, and local members scout for recruits at Egyptian universities. Initially, members of the Muslim Brotherhood do not identify themselves as such, but try to build relationships with their targets in order to establish whether the target in question is inclined towards their ideology. The State party further argues that, regardless of the recruitment tactics of the organization, the author’s statement appears fabricated, as it is unlikely that the Muslim Brotherhood would have shown their arsenal to the author, who was a stranger to them. Finally, the State party notes that the author appears to have a low profile, has not been politically active, does not appear to be a religious person and would therefore not be suspected by the Egyptian authorities of being a member or sympathizer of the Muslim Brotherhood.

4.7The State party notes that the Refugee Appeals Board did not request a verification of the authenticity of the alleged copy of the military service call-up papers dated 11 April 2011 that the author submitted at the interview with the Danish Immigration Service on 3 February 2014. When determining whether to request a verification of the authenticity of documents produced by an asylum seeker, the Board makes an overall assessment of, inter alia, the nature and content of the documents, in conjunction with the prospect of whether such verification could lead to a different assessment of the evidence, the timing and circumstances of the production of the documents, and the credibility of the asylum seeker’s statement in the light of the general background information available on conditions in the country. The State party argues that, accordingly, the Board is under no obligation to request a verification of authenticity in cases in which an asylum seeker produces documents in support of his grounds for asylum. The State party submits that the Board took into account in its decision all relevant information and that the communication has not brought to light any information substantiating that the author will risk persecution or abuse upon his return to Egypt. It also notes that, in his complaint before the Committee, the author has not claimed that the Egyptian authorities would accuse him of being affiliated with the Muslim Brotherhood.

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

5.1On 18 July 2017, the author submitted his comments on the State party’s observations. He maintains that he has sufficiently substantiated his claims for the purposes of admissibility. The author argues that the Refugee Appeals Board applied an unreasonable burden of proof in assessing his claims. He argues that in its observations, the State party disregards the stress he was under when providing information on the issuance of his passport and who precisely he had given it to during his travel. The author also notes that the Board found his statements to lack credibility, as he could not have been issued with a passport without the authorization of the military. The author argues that in his interviews, he did not mention the date on which the passport was issued to him, but merely the date on which he travelled and that, consequently, it was possible for him to have had the passport issued without military authorization.

5.2The author reiterates that he does not wish to perform military service, owing to the risk of killing innocent civilians or being killed himself. He submits that by failing to request a verification of the authenticity of the call-up papers he submitted, the State party authorities did not adequately examine his claims. He further submits that by denying his application for asylum, the State party authorities did not take into account his fear of persecution for failure to perform military service and the subsequent risk of imprisonment, torture and forced military service.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claim contained in a communication, the Committee must decide, in accordance with rule 93 of its rules of procedure, whether it is admissible under the Optional Protocol.

6.2The 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.

6.3The Committee notes the author’s claim that he has exhausted all effective domestic remedies available to him. In the absence of any objection by the State party in that connection, the Committee considers that the requirements of article 5 (2) (b) of the Optional Protocol have been met.

6.4The Committee notes the State party’s challenge to the admissibility of the communication on the grounds that the author’s claims under articles 6 and 7 of the Covenant are unsubstantiated. The Committee notes that the author has not provided any information as to why he considers that he would be at risk of being subjected to treatment contrary to article 6 of the Covenant if removed to Egypt. Accordingly, the Committee declares this part of the communication inadmissible for lack of substantiation under article 2 of the Optional Protocol. The Committee, however, considers that the author has sufficiently substantiated his claims under article 7 for the purposes of admissibility. In the absence of any other challenge to the admissibility of the communication, the Committee declares the communication admissible insofar as it concerns the author’s claims under article 7 of the Covenant, and proceeds with its consideration of the merits.

Consideration of the merits

7.1The 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.

7.2The Committee notes the author’s claim that upon removal from the State party to Egypt, he would be at risk of being sentenced to two to seven years of imprisonment for having failed to perform military service, and that he would be at risk of torture and at risk of forced military service, in violation of his rights under article 7 of the Covenant. The Committee further notes the State party’s submission that the author has failed to substantiate these claims and that the Refugee Appeals Board thoroughly reviewed the author’s claims and concluded that he was not in need of asylum or international protection.

7.3The Committee notes that in his communication before the Committee, the author has not invoked the grounds that he would be at risk of harm from the Muslim Brotherhood or under suspicion by the authorities of being affiliated with the organization ¾ grounds that were invoked by the author before the domestic authorities.

7.4The Committee recalls its general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant, 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 articles 6 and 7 of the Covenant” (para. 12). The Committee has indicated in its jurisprudence that the risk must be personal and that there is a high threshold for providing substantial grounds to establish that a real risk of irreparable harm exists. Thus, all relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin. The Committee recalls its jurisprudence in which it has stated that considerable weight should be given to the assessment conducted by the State party, and that it is generally for the organs of States parties to the Covenant to review or evaluate the facts and evidence of the case in order to determine whether such a risk exists, unless it can be established that the evaluation was clearly arbitrary or amounted to a manifest error or denial of justice.

7.5In the present case, the Committee observes that the author claims that he would be at risk of being sentenced to up to seven years of imprisonment for failure to perform military service and at risk of being subjected to torture. It notes the State party’s argument that during the asylum proceedings, the author made vague and inconsistent statements on several points relating to events in his country of origin, and that elements of his statements appeared to be fabricated or unlikely. Specifically, the Committee notes that the author provided inconsistent statements regarding the loss of his passport, stating in one interview that he had handed it over to the Italian authorities, who had not returned it, while stating in another interview that the passport had been kept by an agent in Libya. The Committee further notes that the author gave inconsistent statements as to how he managed to evade passport control checks in Cairo and as to the financing of his travel from Egypt to Denmark. The Committee notes that these inconsistencies raise doubts as to the author’s credibility. Additionally, the Committee notes that the date on which the author was issued with an Egyptian passport remains in dispute between the parties. The Committee therefore cannot exclude the possibility that the author was issued with the passport when he was under the age of enlistment for compulsory military service. The Committee also notes that the author submitted a copy of his military service call-up papers, dated 11 April 2011, to the Immigration Service during his asylum proceedings, in which it was noted that he might be brought before a military court if he failed to report for duty. The Committee notes that the authenticity of the call-up papers was not verified by the authorities of the State party. The Committee notes the criteria presented by the State party for the verification of the authenticity of documents produced during asylum proceedings and notes that, in the present case, there was a prospect that such verification of the call-up papers produced by the author could have led to a different assessment of the evidence in the case, namely that the author may face charges in Egypt for failure to perform military service. The Committee considers that it therefore cannot exclude the possibility that the author may face criminal charges in Egypt for having failed to report for military service.

7.6The Committee notes that, as stated in the memorandum provided by the Danish Ministry of Foreign Affairs, the potential penalties imposed on draft evaders in Egypt may be lengthy. The Committee, however, recalls its jurisprudence in Ch.H.O v. Canada, in which it found that the deportation of the author to his country of origin, where it was foreseeable that he would face a sentence of imprisonment for refusal to perform military service, would not amount to a violation of the Covenant, unless it was substantiated that the prosecution and imprisonment would amount to irreparable harm. In the present case, the Committee notes that the author has claimed that he would be at risk of torture if he were to be prosecuted and imprisoned in Egypt. The Committee notes that the author has not provided any further personal information or substantiation of this alleged risk. The Committee further notes that country reports indicate that prison conditions in Egypt are harsh and that inmates may be subjected to severe abuses by the authorities, including torture and enforced disappearance, particularly in the case of members or supporters of the Muslim Brotherhood, and that impunity for serious abuses remains in place. In the present case, however, the Committee observes that the author has not alleged that he is a member or supporter of the Muslim Brotherhood, or of any other political or religious association or organization that may put him at risk of ill-treatment in his country of origin, nor has he provided any information that indicates that he would be perceived as being affiliated with such a group. He has also not provided any other information that indicates that he would face a real and personal risk to life or a risk of torture or of ill-treatment if returned to Egypt. The Committee therefore finds that the author has failed to demonstrate that a potential conviction for draft evasion and subsequent imprisonment would amount to irreparable harm, such as that contemplated in article 7 of the Covenant.

7.7The Committee notes that the author has also claimed that he would be at risk of forced military service if returned to Egypt. However, it also notes that, according to the memorandum provided by the Danish Ministry of Foreign Affairs and the Australian Refugee Review Tribunal document of 18 June 2009 referred to by the author in his complaint, citizens are only eligible for military service as long as they are under the age of 30. The Committee notes that, at the time of his potential removal to Egypt, the author will be 30 years of age. The Committee further notes that, according to information provided in the memorandum of the Ministry of Foreign Affairs, the common practice in cases where defendants are sentenced to imprisonment is to dismiss them from the armed forces upon their release from prison. The Committee additionally notes that the author has asserted that his brother died while in military service and that he has not refuted the State party’s argument that he may be exempted from military service on those grounds. The Committee therefore concludes that it has not been demonstrated that the author would be at risk of forced military service if returned to his country of origin.

7.8Accordingly, the Committee cannot conclude that the removal of the author to Egypt would constitute a violation of article 7 of the Covenant.

8.The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that the author’s removal to Egypt would not violate his rights under article 7 of the Covenant.