Advance Unedited Version CCPR/C/117/D/2469/2014

Advance unedited version CCPR/C/117/D/2469/2014

United Nations / CCPR/C/117/D/2469/2014
/ International Covenant on
Civil and Political Rights
Advance unedited version / Distr.: General
5 August 2016
Original: English

Human Rights Committee

Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2469/2014[*, ][**]

Submitted by: E.U.R. (Represented by counsel, Marianne Vølund)

Alleged victim: The author

State party: Denmark

Date of communication: 23 October 2014 (initial submission)

Document references: Decision taken pursuant to rules 92 and 97 of the Committee’s rules of procedure; transmitted to the State party on 24 October 2014 (not issued in a document form)

Date of adoption of Views: 1 July 2016

Subject matter: Deportation to Afghanistan

Substantive issues: Right to life; risk of torture and ill-treatment; right to a fair trial.

Procedural issue: Insufficient substantiation of claims

Articles of the Covenant: 7 and 19

Articles of the Optional Protocol: 2 and 3

1.1 The author of the communication is E.U.R., an Afghan national, ethnic Hazara and Shia Muslim, born in 1987. He claims that he faces a risk of assault and abuse by the Taliban in violation of article 7 ICCPR if deported by Denmark to Afghanistan. According to the decision of the Danish Refugee Appeals Board of 31 January 2013 the author had 7 days to leave Denmark voluntarily, which he failed to do. When he submitted his communication to the Committee, his deportation was scheduled for 27 October 2014 at 2.55 pm.[1] The author is represented by counsel.

1.2 On 24 October 2014, when registering the communication, and 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 Afghanistan during the consideration of his communication by the Committee.

1.3 On 24 April 2015, as part of its observations on admissibility and merits, the State party requested the Committee to review its decision to apply interim measures in the case. The Committee has maintained the interim measures in the case.

The facts as presented by the author

2.1 Early 2009, and until 2010, the author worked as bodyguard on a base called Maywand in Kandahar City. The base comprised police and military members of US forces.

2.2 Early 2010, the author started working as interpreter. He was hired by the American company, ‘Mission Essential Personnel’ (M.E.P.). In the beginning, he worked in Kandahar airport, but was shortly after transferred to the main city, Khalat, in the province of Zabol. He started working on a base called Laghman, after which he started working for the police department in Khalat.

2.3 The author worked as an interpreter for different American delegations until May 2011. For the last three to four months of his employment, he worked for the American Intelligence service. His Chief was M.W.

2.4 As part of his work as interpreter for the intelligence services, the author interpreted four conversations between M.W. and his agent/source, concerning an officer, A.M.W, who was a commander of the logistics department at the headquarters of the Afghan Army, and affiliated with the Taliban. A.M.W was behind a terrorist operation which had destroyed with explosives a bridge in the city of Shafr Safa.[2] It was also mentioned that A.M.W was the owner of the construction company in Afghanistan, which should repair the bridge.

2.5 Shortly after interpreting this conversation, the author was approached by A.M.W, who asked the author to inform him about any conversations concerning him, as he wanted to know what would happen to him. If the author would fail to inform him, A.M.W would kill him.[3]

2.6 A few weeks later, at the end of June 2011, A.M.W was allegedly arrested by the American Special Forces, and handed over to the Afghan authorities.

2.7 The author asked for holidays to visit his sister and her husband in Kandahar. Two days after he left, he received a call from his colleague interpreter informing him that A.M.W had been released. During his family visit, while the author and his sister were away, his brother-in-law was killed. The victim was found dead with stab wounds and his head cut-off. The neighbours allegedly heard some men asking about an interpreter outside the house, and asking for [the author’s first name]. The author unsuccessfully tried to contact his employer M.W. on several occasions. Two days after the funeral of his brother-in-law, the author, his sister and her children left for Iran.

2.8 The author arrived to Denmark on 27 September 2011 and applied for asylum on 30 September 2011. The reason indicated by the author in his claim for asylum was fear from a local colonel with connection to the Taliban, from whom he kept information. The Immigration Service rejected his application on 13 July 2012 because of inconsistencies in dates, which affected his credibility. The Refugee Appeals Board subsequently rejected his application on 31 January 2013. The author claims that he has exhausted domestic remedies.

2.9 The author refers to the report of the Danish Immigration Service of 2012 to support the risk of assault and murder by rebel groups, including the Taliban for Afghan employees of western companies, especially interpreters. In this context the author also refers to the UNHCR Eligibility Guidelines for assessing the international protection needs of asylum-seekers from Afghanistan (6August 2013).[4]

The complaint

3.1 The author invokes article 7 of the Covenant. He alleges that his brother-in-law was killed by people allegedly linked to A.M.W, who is connected to the Taliban, and fears that he himself is persecuted by the Taliban. He fears that if returned to Afghanistan he will be at risk of assault or abuse from the Taliban and the local population because he worked for American forces for two years and is perceived as a traitor.

3.2 The reason for the author’s inconsistencies in reporting dates,[5] because of the pressure felt during the interview with the Immigration Services, and also because he is not familiar with the Gregorian calendar, which was used throughout the process, as opposed to the Afghan calendar.

3.3 Although he cannot be sure that the murder of his brother-in-law is related to the conflict with A.M.W, the author knows for sure that the individuals who attacked his brother-in-law were searching for him. He therefore assumes that this is related to the conflict with A.M.W, especially since this coincides with the latter’s release from detention. The author believes that as a former interpreter for the American forces, he will be persecuted by the Taliban and the local population, and therefore runs a risk of violation of his rights under article 7 of the Covenant in case of forcible return to Afghanistan.[6]

3.4 The author’s employment as an interpreter for the coalition forces between 2009 and 2011 has been documented by letters and recommendations, which were communicated to the Danish Ministry of Foreign Affairs.

3.5 The author also complains about the violation of his rights under article 19 of the Covenant, on the grounds that his work as interpreter, which is a manifestation of his freedom of speech, is seen by the Taliban as treason. As a result of his deportation to Afghanistan, he will be deprived of this right.

State party's observations on admissibility and merits

4.1 On 24 April 2015, the State party submitted observations on the admissibility and merits of the communication. The State party considers that the author has failed to substantiate the risk of irreparable harm as a consequence of his forced return to Afghanistan, and for the same reasons considers the communication inadmissible as manifestly ill-founded due to a lack of substantiation.

4.2 The State party explains that its obligations under articles 6 and 7 of the Covenant are reflected in paragraph 7(2) of the Aliens Act, under which a residence permit will be issued to an alien upon application if the alien is at risk of the death penalty or being subjected to torture or inhuman or degrading treatment or punishment in the event of his return to his country of origin. According to its practice, the Refugee Appeals Board (RAB) will generally consider the conditions for issuing a residence permit under section 7(2) of the Aliens Act to be met when there are specific and individual factors substantiating that the asylum seeker will be exposed to a real risk of the death penalty or of being subjected to torture or to inhumane or degrading treatment or punishment in case of return to his country of origin.

4.3 With respect to the assessment of evidence, it is incumbent upon an asylum-seeker to substantiate that the conditions to be granted asylum are met. The assessment of evidence performed by the RAB is not governed by specific rules of evidence. It is based on an overall assessment of the asylum seeker’s statements and demeanour during the Board’s hearing, in combination with other information in the case, including the Board’s background material on the applicant’s country of origin. In the adjudication of the case, the RAB will seek to determine what findings of fact it should make, based on evidence. If the asylum seeker’s statements appear coherent and consistent, the Board will normally accept them as facts. In cases where the asylum seeker’s statements throughout the proceedings are characterised by inconsistencies, changing statements, expansions or omissions, the Board will seek to clarify the reasons. However, inconsistent statements by the asylum seeker about crucial parts of his grounds for seeking asylum may weaken his/her credibility. If in doubt about the applicant’s credibility, the Board will always assess to what extent the principle of the benefit of the doubt should be applied.

4.4 In the present case, the State party recalls that on 13 July 2012, the Danish Immigration Service rejected the author’s asylum application; on 31 January 2013, the RAB upheld this decision. On 13 May 2013, the author’s counsel requested the reopening of the asylum proceedings. This request was denied on 25 February 2014, on the ground that the author was recorded as having failed to appear in the asylum centre.

4.5 On 13 October 2014, the Danish National police informed the RAB that the author had been detained, and the RAB agreed to reconsider the reopening of the asylum proceedings based on the author’s previous request. On 2 March 2015, the RAB refused to reopen the asylum procedure. The Board found no basis for reopening the case, nor any basis for extending the time limit for the author’s departure.

4.6 The State party recalls that as his asylum grounds, the author has referred to his fear of being killed by a local colonel affiliated with the Taliban in case of his return to Afghanistan because he has withheld information from him. In connection with his employment with the private company Mission Essential Personnel (MEP), the applicant interpreted for the American forces in Afghanistan and, as a result, he obtained intelligence information. In that connection, the applicant became aware that the colonel was suspected of collaborating with the Taliban. In a specific incident in June 2011, the colonel in question contacted the applicant and threatened to kill him if he did not pass on the intelligence information. The applicant declined to pass on the information and the colonel was arrested by the Americans four or five days later. One day in July 2011, the applicant learned that the colonel had been released. The applicant’s brother-in-law was killed the same day by some persons unknown to the applicant. These persons had asked for the applicant.

4.7 The RAB accepted as a fact that the author had acted as an interpreter for ISAF for a period of time, but determined that, viewed in isolation, this did not form a basis for asylum. The Board rejected the author’s account of his alleged conflict with A.M.W., as well as the author’s statement that his brother-in-law should have been killed because of the author’s conflict with the colonel. The RAB further determined that the author made inconsistent statements on significant circumstances, including his attempts to establish contact with the American intelligence officer M.W., and the date on which he had learned about the imminent arrest of Colonel A.M.W. The author has persistently stated that the colonel was arrested at the end of June 2011 and that he (the author) went on holiday with his sister in Kandahar at the beginning of July 2011.

4.8 The Refugee Appeals Board deemed the author not to be credible, as in response to a query from the Ministry of Foreign Affairs, the MEP had stated on 12 June 2012 that the author’s last day at work was 1 May 2011, and that he had resigned from his position for family reasons. The Board also found that it insufficiently substantiated that the killing of his brother-in-law should be related to the applicant’s conflict with Colonel A.M.W. Against that background, the Refugee Appeals Board upheld the decision of 13 July 2012 of the Danish Immigration Service to refuse asylum to the author.

4.9 The RAB questioned a document produced by the author, emanating from the police authorities in the Kandahar province, which confirmed that the author’s brother-in-law had been killed because terrorists were looking for the author. The RAB first noted that due to its form and contents, the document appeared fabricated for the occasion. The Board also found it conspicuous that, after having been refused asylum by the Board, the author contacted a lawyer who requested, on his behalf, that the police investigate a killing which took place back in 2011. No explanation has been provided as to why the alleged killing of the brother-in-law had not previously been reported to the authorities. The State party notes the RAB’s observation that it is possible to purchase all kinds of forged documents in Afghanistan.