Human Rights Committee

Decision adopted by the Committee under the Optional Protocol, concerning communication No. 2625/2015 * , **

Submitted by:S.Z. (represented by counsel, Niels-Erik Hansen)

A lleged victim:The author

State party:Denmark

Date of communication:25 June 2015 (initial submission)

Document references:Decision taken pursuant to rule 97 of the Committee’s rules of procedure, transmitted to the State party on 29 January 2014 (not issued in document form)

Date of adoption of decision:28 July 2016

Subject matter: Deportation to Afghanistan

Procedural issue: Lack of substantiation

Substantive issues:Torture, cruel, inhuman or degrading treatment or punishment; refoulement; fair trial, equality before the law

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

Article of the Optional Protocol: 2

1.1The author of the communication is S.Z., an Afghan national born on 23 March 1995. He claims that his deportation to Afghanistan by Denmark would constitute a violation of articles 6, 7, 13 and 26 of the Covenant. He is represented by counsel, Niels-Erik Hansen.

1.2On 26 June 2015, pursuant to rule 92 of the Committee’s rules of procedure, the Committee requested the State party to refrain from deporting the author to Afghanistan while his case was under consideration by the Committee. On 20 July 2015, the Danish authorities suspended the time limit for the author’s departure from the State party until further notice, in accordance with the Committee’s request.

Factual background

2.1The author is an ethnic Tajik from Kabul, Afghanistan. He was born on 23 March 1995. He went to school for seven years and then worked in a garage located in an area of the city some distance from the area where he was living. Every day, he used to take a “passengers car” (shared taxi) to go to work. He claims that, one day in 2014, he was abducted by armed men on his way back from work in the Sarai Shamali area. A “passengers car” stopped and asked him where he was going, and as the driver was going in the same direction as the author, the latter got into the car. The driver asked him to sit at the back, as other people would get into the car later. Around 10 minutes later, three people got into the car and threatened him with a gun and a knife, beat him and told him that they would kill him if he screamed. He was also told that, if he escaped, he would be found wherever he went. Then the author was taken to a house in the province of Parwan, where the three armed people, plus another two people who had joined them, locked the author up in a room in the basement and took pictures of him. None of the armed people talked to the author and he could not understand what they said to each other, as they spoke Pashto together.

2.2The author claims that he spent five days detained in the room and that he managed to escape through a section of the window which was covered with plastic. He further claims that, while he was in the house, he saw some weapons, materials to make bombs and vests. The author believes that the Taliban abducted him to oblige him to become a suicide bomber, as it is known that they abduct young boys for that purpose. He also claims that, during his detention, he was beaten and kicked several times and that, if he tried to speak, he was hit with a fist and the palm of a hand. After he escaped, the author managed to get to his parents’ house, where he hid for about two days. He was then sent to stay with his grandparents in the city of Akhtachi for about four days. As he was afraid of the Taliban, the author met with an agent who helped him to travel to Europe.

2.3The author’s parents informed him that, around six months after his departure from Afghanistan, armed people came to his house asking for him. They stated that the author “owed something to them” and threatened the author’s father that they would kill the latter if he did not tell them where the author was. After this incident, the author’s parents were obliged to move, and they now live in another area of the country. The author claims that he has not heard from his family since they informed him about the incident.

2.4 On 12 June 2014, the author arrived in Denmark. He applied for asylum and indicated that he was not sure of his age, but that he was born in 1377 according to the Afghan calendar, and that he was therefore approximately 16 years old. The Danish Immigration Service interviewed him on 27 June 2014 and he reiterated that statement. On 17 July 2014, the University of Copenhagen Section of Forensic Pathology prepared a report on the author’s age which indicated that, judging by a clinical examination, a dental examination and an X-ray examination of his left hand, the author was most likely 19 years old or older. The report added that there was some possibility, albeit small, that the author might be as young as 17 years old. On 12 August 2014, the Immigration Service determined that the author’s date of birth was 23 March 1995 and that he was therefore not a minor.

2.5The Immigration Service rejected the author’s asylum request on 17 December 2014. The author appealed this decision to the Refugee Appeals Board. On 28 April 2015, the Board rejected the author’s appeal. It found that the author lacked credibility and that his evasive and inconsistent statements on essential points demonstrated that his remarks did not reflect his actual experiences. For example, the author gave contradictory statements in relation to the way he escaped the house in which he was supposedly detained, as he firstly said that he had operated a latch on a window to escape, and subsequently indicated that he had got out through a hole in a window that was covered with plastic; he also contradicted himself regarding the violence to which he claimed to have been subjected, as he firstly indicated that he had not been subjected to any violence, and subsequently stated that he had been beaten and kicked by his captors; he also provided contradictory information regarding the length of his trip to Parwan. The Board therefore did not consider the author’s statements as facts. It further considered that the general situation in Afghanistan cannot justify granting refugee status to the author.

2.6The author indicates that he has exhausted all domestic remedies, as the decisions by the Board cannot be appealed.

The complaint

3.1The author alleges that his deportation to Afghanistan would put his life at risk and that he would also face inhuman and degrading treatment, in violation of articles 6 and 7 of the Covenant. The author states that he fears that, if he is returned to Afghanistan, the Taliban would kill him because he had previously escaped from them. He also indicates that he fears that the Taliban may be able to find him wherever he stays in Afghanistan because they have pictures of him.

3.2The author further submits that he fears suicide bombers in Afghanistan, as well as the general situation there, as human rights are not protected and the police are corrupt and work with the Taliban. He refers to a press article in which the Afghan Minister of Refugees and Repatriation urged several Western governments to stop deportations to Afghanistan, in particular deportations of women and children. The Minister had indicated that, although the situation had improved after 2011, and some agreements with Western governments had been put in place in order to deport nationals to Afghanistan, the situation had changed and that it was currently very dangerous to return to several provinces of the country. Therefore, he opposed deportations and had written to the governments concerned asking them to revise the deportation agreements which were in place. The author claims that, given that the Government itself advises against sending nationals back to Afghanistan, he should not be deported: the situation there has become too dangerous, including in Kabul.

3.3The author also refers to the Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, published by the Office of the United Nations High Commissioner for Refugees (UNHCR) in 2013, according to which the following groups are in need of international protection: individuals associated with and perceived as supportive of the Government and the international community, men and boys of fighting age, individuals perceived as contravening the Taliban interpretation of Islamic principles, norms and values, and members of ethnic minority groups. He explains that, owing to his travel to Europe, if he was returned to Afghanistan he would certainly be perceived as having contravened Islamic rules and as being supportive of the Government and/or the international community. He further claims that, given his age, he would be at risk of being forced to fight either for the Government or for the Taliban, and he alleges that sexual assaults on young men are commonly reported in Afghanistan. In addition, he claims that, as a Tajik, if he is returned to Afghanistan he will be persecuted because he belongs to a minority ethnic group.

3.4The author further notes that the Board has had to reopen several cases of asylum seekers whose asylum requests had previously been rejected as a result of proceedings before the Committee, and claims that this demonstrates that the Board often makes mistakes. He quotes several cases registered by the Committee and reopened by the Board in which, after a review of the case, refugee status has been granted. In particular, he refers to communications submitted by Afghan nationals which have been discontinued by the Committee because the authors have been granted refugee status following the Board’s review of their cases.

3.5The author also submits that, as an asylum seeker, he was not able to appeal the decision of the Board dated 28 April 2015, although any other person in Denmark can appeal against the decisions of administrative bodies. He considers that this situation amounts to a violation of articles 13 and 26 of the Covenant.

State party’s observations

4.1On 22 December 2015, the State party submitted its observations on the admissibility and merits of the communication. It submits that the communication is not substantiated, as the author has not demonstrated a possible breach of the Covenant if he is deported to Afghanistan.

4.2The State party describes the structure, composition and functioning of the Refugee Appeals Board, as well as the legislation applying to asylum proceedings. It indicates that the Board analyses whether an asylum applicant may fear being subjected to specific and individual persecution or to a risk in the case of return to his or her country of origin, taking into account any information on persecution prior to the asylum seeker’s departure from his or her country of origin (section 7 (1) of the Aliens Act). In addition, the State party indicates that a residence permit may be issued to an alien who risks the death penalty or risks being subjected to torture or ill-treatment if returned to his or her country of origin. The State party also indicates that the Board considers the conditions for issuing a residence permit fulfilled if there are specific and individual factors rendering it probable that the asylum seeker will be exposed to a real risk of death or of being subjected to torture or ill-treatment in case of return (section 7 (2) of the Aliens Act).

4.3Regarding the admissibility of the communication, the State party indicates that the author has failed to establish a prima facie case for admissibility purposes in respect of the alleged violation of articles 6 and 7 of the Covenant, as he has not substantiated his claim that he would face any risk or danger if deported to Afghanistan. The State party indicates that its obligations under articles 6 and 7 of the Covenant are reflected in sections 7 (1) and 7 (2) of the Aliens Act, according to which a residence permit will be issued to an alien if he or she risks the death penalty or risks being subjected to torture or ill-treatment in case of return to his or her country of origin. The State party therefore considers that it has complied with its international obligations.

4.4Regarding the author’s allegations that the impossibility of his appealing the Board’s decision before a court amounts to a violation of article 13 of the Covenant, the State party refers to the Committee’s jurisprudence, which states that article 13 offers some of the guarantees afforded by article 14 (1) of the Covenant, but not the right to appeal or the right to a court hearing. Therefore, the State party considers that the author has failed to establish a prima facie case for the purpose of admissibility under article 13 of the Covenant and that this section of his communication should be declared inadmissible. As for the author’s allegations under article 26 of the Covenant, the State party refers to the author’s statement that the impossibility of appealing the Board’s decision violates his rights under article 26 because other persons in Denmark, other than asylum seekers, have the possibility of appealing the decisions of administrative bodies like the Board before a court. The State party concludes that the author has failed to establish a prima facie case for the purposes of admissibility under article 26 of the Covenant and considers that this claim should be declared inadmissible for lack of substantiation.

4.5Regarding the merits of the communication, the State party submits that the author has failed to establish that his return to Afghanistan would constitute a violation of articles 6, 7, 13 and 26 of the Covenant. Regarding articles 6 and 7, the State party indicates that the author has not provided any new information to the Committee that has not already been reviewed by the Board. The State party recalls the author’s claim that he would be at risk of a breach of articles 6 and 7 of the Covenant if returned to Afghanistan because he was kidnapped by the Taliban so that they could force him to become a suicide bomber and that, if he is returned there, the Taliban will find him and kill him, or subject him to torture or ill-treatment because he had escaped from them. In this regard, the State party points out that the author made several inconsistent statements during his asylum proceedings. Firstly, the State party refers to the inconsistencies in the author’s account of his escape from his place of detention through the window. Secondly, it indicates that, while in his interview with the Immigration Service on 27 June 2014 and in the hearing before the Board he stated that he had been beaten by his captors, in the interview with the Immigration Service on 3 December 2014 he stated that he had not been beaten or kicked, and that he had merely been threatened with violence if he tried to escape. Thirdly, the author made inconsistent statements regarding the length of his journey to Parwan: in his interview with the Immigration Service on 27 June 2014, he affirmed that the journey had taken about one hour or two; then in the interview with the Immigration Service on 3 December 2014 he indicated that it took around 30 minutes; and in his hearing before the Board, he indicated that the drive with the kidnappers had taken around 20 minutes.

4.6In addition, the State party points out that, during the asylum proceedings, it was difficult for the author to estimate the timing of various incidents, including the length of time he had been kidnapped and the length of time he had stayed with his parents and grandparents, and the point at which his family had been asked by the Taliban about his whereabouts. The State party further indicates that many of the statements made by the author seem unlikely; for example, his assertion that his captors did not take any precautions to prevent his escape and the fact that he did not escape earlier, since he was alone in the room where he was being kept. The State party affirms that the author has not provided any reasonable explanation regarding such inconsistencies, which relate to essential points of his account.

4.7The State party also indicates that the author’s account is not consistent with the background material available. It refers to a report by the Immigration Service, according to which, contrary to the author’s assertion, the Taliban do not recruit young boys by force, but that the latter join the Taliban voluntarily. In addition, the report indicates that most suicide bombers are poor young males originating from Punjab province in Pakistan or from North and South Waziristan. Furthermore, the State party points out that the recruitment of suicide bombers requires a certain level of willingness and belief in the purpose of the action on the part of the recruit, which is in contradiction with the author’s account.

4.8The State party further submits that the fact that the author is a Tajik does not, in itself, justify asylum. The State party refers to the UNHCR Eligibility Guidelines (pp. 36-37) for an assessment of the international protection needs of asylum seekers from Afghanistan, according to which persons perceived as supportive of the international community are, for example, local leaders, religious leaders and women in the public sphere. As for men and boys of fighting age, the Eligibility Guidelines indicate that there is a risk for those boys and men in areas where the Government does not exercise control and in the areas affected by the conflict between pro-government and non-governmental forces. In addition, persons perceived as contravening the Taliban’s interpretation of Islamic values can be attacked in those same areas. The Taliban mainly target musicians, film-makers, people playing sports and persons who have attended events perceived as violating Islamic principles, norms and values. Finally, regarding the author’s allegation that individuals from an ethnic minority would face a risk if returned to Afghanistan, the State party submits that such groups may need protection if they originate from an area not subject to government control in which their ethnic group constitutes a minority. The State party points out that the author does not fall into any of these categories, as he is a Tajik from the capital, which is controlled by the Government and where Tajiks form about 15 per cent of the population; he is a low-profile person, as he has never been politically active and has never experienced any problems with the Afghan authorities.

4.9With respect to the author’s allegations related to the general situation in Afghanistan, in particular the call made by the Minister of Refugees and Repatriation for States not to deport nationals of Afghanistan back to the country, the State party affirms that such a statement does not lead to a revised legal assessment of the author’s asylum request and that the Afghan authorities have agreed to receive him. In addition, it submits that, contrary to the author’s assertion, Kabul continues to be a safe place, as confirmed by the statement of the Afghan Minister of Refugees and Repatriation referred to by the author.

4.10The State party submits that the Board’s decision of 28 April 2015 was taken after a thorough review of the author’s claims and the evidence he submitted and in accordance with domestic legislation. It considers that the author is trying to use the Committee as an appellate body to have the factual circumstances of his asylum application reassessed. The State party also submits that the Committee must give considerable weight to the Board’s findings, as the latter is better placed to assess the facts in the author’s case. It further submits that the author’s communication merely reflects the fact that he disagrees with the assessment of his case made by the Board, and it considers that he has failed to identify any irregularity in the decision-making process in the asylum proceedings, or any risk factors that the Board failed to take properly into account. The State party further emphasizes that the author has not rendered it probable that he would be subjected to persecution, or that he would face any risk to his life or risk of being subjected to torture or ill-treatment in Afghanistan.

4.11The State party further reiterates that the alleged violations of articles 13 and 26 of the Covenant have not been substantiated.

Author’s comments on the State party’s observations

5.1On 24 February 2016, the author submitted his comments on the State party’s observations. With regard to the observations on the admissibility of the communication, in particular the State party’s argument that the author’s allegations regarding the violation of his rights under articles 6 and 7 of the Covenant lack substantiation, the author considers that such allegations are, in fact, duly substantiated, as the current situation in Afghanistan is extremely dangerous. He provides a press article dated 2 February 2016, reporting on a meeting between the Afghan Minister of Refugees and Repatriation and the Minister of the Interior of Germany, according to which the Government of Afghanistan had declared that it would only accept refugees and asylum seekers who agreed to return to the country voluntarily. The author further refers to another press article dated 26 April 2015, according to which a young Afghan man had been raped by several Taliban militants in order to force him to commit a suicide attack. The article indicates that the young man was arrested just before the attack and that he had confessed his intention to blow up a police station in Kabul as a way of “washing off [his] sins”. The author also provides a travel warning issued by the Government of Denmark, in which the Government recommends that its nationals should not travel to Afghanistan, given the heightened risk of terrorist attacks and kidnappings in the country, including in Kabul.

5.2The author further reiterates his submissions related to the alleged violation of articles 13 and 26 of the Covenant.

5.3The author considers that, according to its observations on the merits, the State party seems to accord more importance to credibility issues than to the actual situation in Afghanistan. He indicates that although, according to background information, suicide bombers are not generally recruited by force, one cannot exclude the possibility that young boys could be forced by the Taliban to commit suicide attacks. In this connection, he refers to the case of a young boy who was raped in order to force him to commit a suicide attack. He further argues that the Board could have used more recent information to support its decision of 28 April 2015, as it refers to reports from 2012, although information as recent as 2016 and more relevant to the author’s situation was already publicly available then. The author further reiterates that the current situation in Afghanistan is extremely dangerous, which is confirmed by the State party’s travel warning which discourages any travel there.

5.4The author reiterates his reference to the cases in which the Committee’s interim measures requests resulted in the reopening of the cases of the people concerned, who then received residence permits. The author claims that this demonstrates that the Board often makes mistakes and indicates that the Board’s decision of 28 April 2015 was manifestly unreasonable and arbitrary.

State party’s additional observations

6.1On 19 August 2016, the State party provided further observations to the Committee. The State party reiterates that, according to the Committee’s jurisprudence, article 13 of the Covenant does not establish the right to appeal or the right to a court hearing. In addition, in accordance with domestic legislation, the author had the possibility of appealing the Immigration Service decision of 17 December 2014 to the Board. The Board’s decisions are final and not subject to judicial review. This has been confirmed by the Danish Supreme Court, which has, however, established that aliens can, by virtue of the Constitution, bring an appeal before the courts, which have the competence to adjudicate any matter concerning the limits of competence of a public authority. Nevertheless, such review by the courts is limited to points of law.

6.2With respect to the author’s allegation that his rights under article 26 of the Covenant had been violated, the State party reiterates that he has not been treated differently from any other person applying for asylum and that, in his asylum proceedings, no distinction was made on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

6.3In relation to the author’s argument that the current situation in Afghanistan is extremely dangerous, and that even the State party recommends that people should not travel there, the State party submits that the foreign travel advice issued by the Ministry of Foreign Affairs of Denmark applies to Danish nationals and Danish interests and that the risk of terrorist attacks and abductions relates only to Danish nationals. In addition, it indicates that the Board keeps abreast of information on conditions in Afghanistan, including information on the general security situation. For this purpose, the Board searches for background material four times a year.

6.4In relation to the author’s allegation that the Board’s decision of 28 April 2015 took into account only information from 2012, the State party submits that the Board keeps abreast of the latest background information, as it conducts research four times a year. The State party refers to UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan, issued by UNHCR in 2016, according to which, in areas where anti-government elements exercise effective control, they are reported to use a variety of mechanisms to recruit fighters, including recruitment mechanisms based on coercive strategies. People who resist recruitment are reportedly at risk of being accused of being a government spy and being killed or punished. The State party reiterates its assertion that, as the author originates from Kabul, an area controlled by the Afghan Government, the Board’s assessment that the general situation in Afghanistan does not justify residence in Denmark under section 7 of the Danish Aliens Act still applies.

6.5Furthermore, the State party refers to several decisions by the European Court of Human Rights on the general conditions in Afghanistan. For instance, it refers to A.W.Q . and D.H. v. the Netherlands (application No. 25077/06), judgment of 12 April 2016, para. 71, in which the Court stated that it did not find that the general situation in Afghanistan had reached such a level of violence that the simple return of a person there would give rise to a risk of ill-treatment.

6.6The State party further submits that the author has failed to demonstrate that the reopened cases he referred to are similar to his own situation, beyond the fact that the asylum seekers in these cases were also Afghans. In addition, the State party reiterates that the Board decides to reopen a case on the basis of an individual assessment of the applicant’s situation. In the author’s case, it found that he had not produced any new information or rendered it probable that he would risk a violation of his rights under articles 6 and 7 of the Covenant.

Issues and proceedings before the Committee

Consideration of admissibility

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

7.2The Committee notes, as required by article 5 (2) (a) of the Optional Protocol, that the same matter is not being examined under any other international procedure of investigation or settlement.

7.3The Committee takes note of 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 this connection, the Committee considers that the requirements of article 5 2 (b) of the Optional Protocol have been met.

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 when 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 also indicated 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. 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 organs of States parties to the Covenant to review or evaluate 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 manifest error or denial of justice.

7.5In the present case, the Committee notes the State party’s argument that the author made several inconsistent statements during asylum proceedings, that the Board made a comprehensive and thorough examination of the evidence submitted by him, that he is trying to use the Committee as an appellate body to have the factual circumstances of his asylum application reassessed, and that he has failed to establish a prima facie case for admissibility purposes regarding the alleged violation of articles 6 and 7 of the Covenant.

7.6The Committee notes the author’s claim that the Board often makes mistakes and that its decision of 28 April 2015 is manifestly unreasonable and arbitrary. The Committee observes, however, that the author has not identified any irregularities in the decision-making process, or any risk factor that the State party’s authorities failed to take properly into account. It considers that, while the author disagrees with the factual conclusions of the authorities of the State party, he has not shown that those conclusions were clearly arbitrary or manifestly erroneous, or amounted to a denial of justice.

7.7The Committee further observes that the author’s request for asylum on the grounds of his fear of persecution by the Taliban because he escaped from them, after they had kidnapped him in order to force him to commit a suicide attack, was rejected by the Immigration Service and the Board because he had failed to establish that he would face any risk to his life or be subjected to torture if returned to Afghanistan. The Committee notes the State party’s argument that, during his asylum proceedings, the author made several contradictory and unlikely statements, and that it was difficult for him to provide clear information relating to essential points of his account, including the period during which he was abducted; the period during which he stayed with his parents after the abduction, and later with his grandparents; and the moment when his family was asked about his whereabouts by the Taliban. The Committee further notes the State party’s argument that the author has not provided any reasonable explanation regarding such inconsistencies. The Committee also takes note of the State party’s affirmation that the author’s account is not consistent with the background material available, according to which the Taliban do not recruit suicide bombers by force. The Committee further notes the State party’s statement that, according to the background information available at the moment the decision on his asylum application was taken, the author did not fall within any of the categories identified by UNHCR as being at risk in Afghanistan, as he originates from an area controlled by the Government, has never been politically active and has never had any problems with the authorities. In addition, the Committee notes the State party’s statement that the fact that the author is a Tajik does not justify asylum, as according to the background information available when the Board’s decision was made, minorities are at risk only in those areas where anti-government elements are in control, not in areas where, as in Kabul, the Afghan Government is in control. The Committee also takes note of the State party’s affirmation that, according to background material available at the time the decision on the author’s application was taken, the general situation in Afghanistan could not, by itself, be considered as a basis for granting asylum and that the Afghan authorities had agreed to receive the author.

7.8The Committee also notes the author’s allegation that the current situation in Afghanistan is very dangerous and could constitute a basis for granting asylum to persons who, as he does, belong to a minority and have spent some time in the West, and might therefore be perceived by the Taliban as supporting the Government and the international community. The Committee further takes note of the author’s claim that, although the majority of suicide bombers join the Taliban voluntarily, it is possible that young boys such as the author may be recruited by force. The Committee also notes the author’s submission that, given the poor security situation in the country, the Afghan Government is advising States not to return Afghan nationals to the country. The Committee observes, however, that the author is from Kabul; that, according to the statement made by the Afghan Minister on Refugees and Repatriation and quoted by the author, Kabul remains a safe area; and that publicly available information indicates that persons from places where the anti-government elements do not exercise control, such as Kabul, are not at risk of persecution by the Taliban.

7.9The obligation not to remove an individual contrary to a State party’s obligations under the Covenant applies at the time of removal. The Committee recalls that, in cases of imminent deportation, the material point in time for assessing this issue must be that of its own consideration of the case. Accordingly, in the context of the communications procedure under the Optional Protocol, in assessing the facts submitted to its consideration by the parties, the Committee must also take into account new developments brought to its attention by the parties that may have an impact on the risks that an author subject to removal may face. In the present case, the information in the public domain has signalled a significant deterioration of the situation in Kabul in recent times. However, on the basis of the information in the case file, the Committee is not in a position to assess the extent to which the current changed situation in his country of origin may impact the author’s personal risk. In this context, the Committee recalls that it remains the responsibility of the State party to continuously assess the risk that any person would face in case of return to another country before the State takes any final action regarding his or her deportation or removal.

7.10Without prejudice to the continuing responsibility of the State party to take into account the present situation of the country to which the author would be deported, and in the light of the available information regarding the author’s personal circumstances, the Committee considers that the author’s claims under articles 6 and 7 of the Covenant have been insufficiently substantiated for the purposes of admissibility, and concludes that this part of the communication is inadmissible under article 2 of the Optional Protocol.

7.11The Committee further notes the author’s claims under article 26 of the Covenant that the Board’s decision and its procedure constitute a discrimination against asylum seekers, since all other decisions by administrative bodies can be appealed before courts pursuant to the State party’s laws. It also notes the State party’s statement that the author has been treated in the same way as any other person applying for asylum before its authorities, whatever their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The Committee observes that the author has not provided any further arguments on this part of the complaint. It therefore considers that the author has failed to sufficiently substantiate his claims under article 26 and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

7.12The Committee further notes the author’s claims that the impossibility for him to appeal the Board’s decision of 28 April 2015 amounts to a violation of his right to a fair trial under article 13 of the Covenant, as the decisions of the Board are the only administrative decisions that cannot be appealed before the national courts. The Committee recalls its jurisprudence, referred to by the State party, according to which article 13 of the Covenant offers to asylum seekers some of the protection afforded under article 14 of the Covenant, but excludes the right of appeal to judicial courts. The Committee therefore concludes that the author has failed to sufficiently substantiate his claims under article 13, and declares this part of the communication inadmissible under article 2 of the Optional Protocol.

8.The Committee therefore decides:

(a)That the communication is inadmissible under article 2 of the Optional Protocol;

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