Communication 3605/2019: Decision/Views

The authors of the communication are F.J.S. and D.P.S., nationals of the Bolivarian Republic of Venezuela, both born in 1969. They submit the communication on their own behalf and on behalf of their daughters, A.S.P. and K.L.P., nationals of the Bolivarian Republic of Venezuela born in 1999 and 2006, respectively. The authors claimed that the family’s deportation to the Bolivarian Republic of Venezuela would amount to a violation of their rights under articles 2, 5, 6, 7, 9 (1), 10 (1), 13, 14 (2) and (3) (b), (d) and (g), 17, 19 (1) and (2), 23 (1), 24, 25 (c) and 26 of the Covenant. The Optional Protocol entered into force for the State party on 23 March 1976. The authors are represented by counsel.

On 16 May 2019, pursuant to rule 94 of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, rejected the authors’ request for interim measures.

On 25 November 2020, pursuant to rule 93 (1) of its rules of procedure, the Committee, acting through its Special Rapporteurs on new communications and interim measures, denied the State party’s request to examine the admissibility of the communication separately from the merits.

The authors note that they participated in a public national referendum held on 15 August 2004 in the Bolivarian Republic of Venezuela to manifest their political opinion against the then president of the country, Hugo Chávez. They voted against his continued mandate. They state that, during the referendum, the Government digitally registered the names, addresses, fingerprints and personal identification numbers of voters, as well as how they cast their votes. The names of those who voted against the president were registered in a digital database called the “Tascón List”, which was distributed to all government offices in order for them to be able to identify political opponents. The authors’ names were subsequently included on the “Maisanta List”, which was used by the Government to register civilians who supported the political opposition and to exclude them from occupying posts in the public administration and prevent them from benefiting from the main public services.

The authors claim that because of her political expression, D.P.S. was fired in 2004 from her job as an assistant to a judge in Yaracuy. From 2012 to 2014, the authors regularly participated in demonstrations against the Government. From 2013, D.P.S. was able “to work incognito” as an assistant to an army colonel, on condition that she did not reveal that she was on the Maisanta List. Her employer offered government-subsidized basic food packages to the workers in the office. D.P.S. was, however, denied access to buy the subsidized food and the family had to buy food on the black market for prices 40 to 100 times higher than the government-subsidized food packages. Even with two full-time incomes, the authors had to rely upon financial help from family members in Sweden to be able to buy food. Notwithstanding that help it was very difficult to buy food and to eat sufficiently and they frequently lacked access to adequate food.

In 2016, D.P.S. was falsely accused by the new head of her office of having stolen a laptop. She became afraid, as she knew that it would come to light that she had been registered as a political opponent. That, together with the fact that that she was being framed for theft and the family’s difficulty in accessing adequate food, made the family decide to flee the country.

After their arrival in the State party in 2016, F.J.S. was diagnosed with type 2 diabetes, which requires him to be on medication for the rest of his life. The authors claim that there is no access to diabetes medication in the Bolivarian Republic of Venezuela. A.S.P. was also diagnosed with severe depression that required medication.

The authors’ application for asylum was denied by the Migration Agency on 3 November 2016. The Migration Agency noted that the authors had stated that they would not be able to access adequate food in the Bolivarian Republic of Venezuela if deported, because of the economic situation in the country. The Migration Agency noted that social or economic reasons are not grounds for granting an application for asylum. The Migration Agency noted the authors’ claims that they had signed the referendum petition in 2004, although they had not received any threats or been subjected to violence because of that. They had been issued passports in 2014 and had travelled out of the Bolivarian Republic of Venezuela without any problems. The Migration Agency found that F.J.S. would be able to access medical care for diabetes in the Bolivarian Republic of Venezuela and that A.S.P. would also be able to access medical care for depression. The decision was upheld by the Migration Court and the Migration Court of Appeal on 5 December 2016 and 28 February 2017, respectively.

The authors submitted a complaint to the European Court of Human Rights on 13 March 2017, which was declared inadmissible on 8 June 2017. The Court found that: “in the light of all the material in its possession and in so far as the matters complained of are within its competence, that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the Protocols thereto and that the admissibility criteria set out in Articles 34 and 35 of the Convention have not been met”.³

3. Application No. 19482/17. ↩

The authors applied for an impediment to enforcement of the expulsion order against them on 6 March 2017, which was rejected by the Migration Agency on 31 May 2017. The decision was upheld on appeal by the Migration Court and the Migration Court of Appeal on 29 June and 16 August 2017, respectively. On 17 July 2017, the authors submitted a second application for residence permits citing impediments to enforcement. In the application, they referred to country information on the Bolivarian Republic of Venezuela, which, according to them, showed that they were in need of international protection. On 27 October 2017, the Migration Agency found that the information submitted did not indicate any new circumstances relating to the authors’ case and rejected the application. The Migration Court overturned the decision of the Migration Agency on 7 December 2017, and remitted it for reassessment as it found that the escalation of the economic and social crises in the Bolivarian Republic of Venezuela constituted a new circumstance that merited a reassessment of the authors’ case.

In a decision dated 27 April 2018, the Migration Agency upheld its initial decision. It noted that there was an economic, social and political crisis in the Bolivarian Republic of Venezuela and that high-profile opposition figures were at risk of arbitrary arrest. It noted, however, that the authors did not have such a profile. It noted that, although the humanitarian crisis had worsened, it had not worsened to such an extent that everyone from the Bolivarian Republic of Venezuela was entitled to international protection and that for such protection to be granted, there needed to be a substantiated personal risk. It noted that, apart from signing the 2004 petition, the authors had not been politically active. It found that it had not been substantiated that the authors would be unable to obtain jobs in the Bolivarian Republic of Venezuela to support themselves, if deported, and it noted that both the authors had had jobs before leaving the country. The decision was upheld by the Migration Court and the Migration Court of Appeal on 15 August and 17 October 2018, respectively. Regarding the health condition of F.J.S., the Migration Court noted that he had been diagnosed in 2015 in the Bolivarian Republic of Venezuela and had thus been able to access medical care in the country. It referred to country information and noted that medicine for diabetes was available in the Bolivarian Republic of Venezuela, although it could at times be difficult to obtain. It made the same assessment regarding the health condition of A.S.P.

The authors claim that, if deported to the Bolivarian Republic of Venezuela, their rights under articles 2, 5, 6 and 7 of the Covenant would be violated.⁴

4. In their comments of 23 September and 28 October 2019, the authors also invoked claims under articles 9 (1), 10 (1), 13, 14 (2) and (3) (b), (d) and (g), 17, 19 (1) and (2), 23 (1), 24, 25 (c) and 26 of the Covenant. ↩

The authors note that the State party is under a duty to consider all relevant facts as they relate to the country of origin at the time of taking a decision on an asylum application. They claim that, in assessing their asylum application, however, the State party’s authorities abrogated their responsibility to assess and document the relevant country of origin information, leaving it to the authors to assume that responsibility, in violation of article 2.

Furthermore, the authors claim that the Migration Agency deliberately used irrelevant country of origin information during their interview with the sole purpose of pushing forward the complainants’ cases in the Swedish asylum system, thus minimizing their chances of gaining approval of their asylum claims, which is a violation of article 5.

The authors claim that the Government of the Bolivarian Republic of Venezuela is currently committing serious and grave violations of the right to life. They refer to country reports according to which the humanitarian situation in the country has deteriorated, leading to further collapse of services, deterioration of health facilities and food insecurity among the population.⁵ They note that millions of Venezuelans have fled the country in order to survive. They argue that their need for international protection must be assessed against the general worsening conditions in the country, taking into account that they are perceived to be political opponents of the Government.

5. The authors refer to, among other country reports: ACAPS, “Venezuela: situational update and 2019 outlook”, 28 March 2019; and Amnesty International, “Urgent measures: Venezuelans need international protection”, 3 September 2018. ↩

The authors claim that the State party’s authorities have failed to effectively assess their asylum applications. They claim that the Government of the Bolivarian Republic of Venezuela would punish the family by denying them access to basic food (distributed by the Local Supply and Production Committees (Comités Locales de Abastecimiento y Producción)),⁶ medicines, public healthcare, further education, public employment, vaccines for children and social benefits because of their political opinions. They claim that that would put them at great risk of suffering cruel, inhuman or degrading treatment or punishment with a serious risk of irreparable harm to their health and life due to malnutrition, hunger and physical and mental suffering.

6. The authors refer to: Organization of American States, Report of the General Secretariat of the Organization of American States and the Panel of Independent International Experts on the Possible Commission of Crimes against Humanity in Venezuela (Washington, D.C., 2018). ↩

On 12 July 2019, the State party submitted its observations on admissibility of the communication. The State party argues that the communication should be found to be inadmissible, as it has already been examined under another procedure of international investigation or settlement. Furthermore, it argues that the authors’ claims should be found inadmissible as they are manifestly ill-founded.

The State party notes that D.P.S. A.S.P. and K.L.P. first entered the State party in 2010 to visit F.J.S.’s sister. Before their visitor’s permits expired, they applied for extensions, which were granted. They subsequently left Sweden and returned to the Bolivarian Republic of Venezuela. In 2016, the authors once again entered the State party to visit F.J.S.’s sister. However, instead of returning to the Bolivarian Republic of Venezuela, they applied for asylum on 13 September 2016.

The State party notes that, after the rejection of their application for asylum by the State party’s migration authorities, the authors lodged an application with the European Court of Human Rights on the same matter, namely, their expulsion to the Bolivarian Republic of Venezuela, and that, on 8 June 2017, the Court found the application inadmissible. The State party notes that the Court found that the application did not disclose any appearance of a violation of the rights and freedoms set out in the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) or the Protocols thereto, and that the admissibility criteria set out in articles 34 and 35 of the Convention had not been met. The State party argues that it is evident from the wording of the decision that the Court examined the complaint in the sense of article 5 (2) (a) of the Optional Protocol. It argues that the Court therefore declared the authors’ application inadmissible for reasons related to the substance of their application, rather than solely on mere procedural grounds, and that under these circumstances, it must be considered that the Court has examined the complaint.⁷

7. The State party entered a declaration in relation to article 5 (2) upon its ratification of the Optional Protocol, which reads: “On the understanding that the provisions of article 5, paragraph 2, of the Protocol signify that the Human Rights Committee provided for in article 28 of the said Covenant shall not consider any communication from an individual unless it has ascertained that the same matter is not being examined or has not been examined under another procedure of international investigation or settlement.” ↩

The State party notes that the authors were granted a new examination of their applications for residence permits in the State party after they lodged their complaint with the European Court of Human Rights. It argues, however, that both examinations before its domestic authorities were based on the same circumstances, namely the general situation in the Bolivarian Republic of Venezuela and the authors’ cited political activities. It therefore submits that the new examination before its migration authorities in 2018 cannot be considered to distinguish the present complaint from the complaint that was previously lodged with the European Court of Human Rights.

The State party notes the authors’ claims that there have been several violations of articles 2 and 5 of the Covenant by the migration authorities in connection with the examinations of their asylum applications. It notes in that regard that articles 2 and 5 constitute general undertakings by signatory States that cannot be invoked, in isolation, by individuals under the Optional Protocol.⁸ It submits that the claims under those articles should therefore be found inadmissible under article 3 of the Optional Protocol. Furthermore, it argues that the authors have failed to substantiate, for the purposes of admissibility, their claims under articles 6 and 7 of the Covenant. It argues that the authors have made numerous allegations regarding the domestic proceedings that are insufficiently substantiated or otherwise unsupported by the domestic decisions and judgments.

8. The State party refers to M.G.B. and S.P. v. Trinidad and Tobago, communication No. 268/1987, para. 6.2. ↩

The State party notes that, while not wishing to underestimate the concerns that may legitimately be expressed regarding the human rights situation in the Bolivarian Republic of Venezuela, it agrees with the assessment made by its migration authorities, namely that the situation there does not in itself suffice to establish that the authors’ expulsion would be contrary to articles 6 and 7 of the Covenant. It notes that the migration authorities initially held that social and financial issues could not form the basis for an application for asylum. Furthermore, the migration authorities noted that the authors had not been subjected to any kind of threat or abuse from the Venezuelan authorities after they had been registered on the Tascón List in 2004. On the contrary, D.P.S. was hired as an administrative assistant by a public authority as late as 2014, a post that she voluntarily left in 2016. Furthermore, the entire family was granted passports in 2014 without encountering any problems, which was a strong indication that the Venezuelan authorities had no interest in the authors. It was also noted that the authors had first arrived in Sweden in 2010, that is after the authors had been registered as opponents of the Government. During that visit, they applied for and were granted extended visitor’s permits to visit their relatives. However, they made no mention of being at risk of persecution nor did they submit an application for asylum.

Regarding the authors’ individually cited grounds for protection, the State party notes that these are mainly of a social and financial nature. The authors resided in the Bolivarian Republic of Venezuela without receiving threats or suffering abuse after they had been registered as opponents of the Government in 2004. Furthermore, they were able to obtain employment in a public authority, acquire passports and manage their everyday social and financial situation. In that regard, the State party notes that there is no evidence to support the authors’ claims that they were denied housing, healthcare or education.

On 23 September and 28 October 2019, the authors submitted their comments on the State party’s observations on admissibility. They maintain that the communication is admissible and argue that, as their complaint before the European Court of Human Rights was found to be inadmissible without further examination, the same matter has not been examined on the merits under another international procedure. They note that their complaint before the Court was found to be inadmissible in 2017 and that they subsequently initiated further proceedings in the State party based on the worsening humanitarian crises in the Bolivarian Republic of Venezuela. They also note that, in 2018, the Migration Court found that the worsening situation in the Bolivarian Republic of Venezuela constituted a new circumstance, not covered by the initial decision on their applications for asylum, wherefore a new assessment of their applications needed to be made. They argue that the same matter has therefore not been examined by the Court.

The authors note that they have invoked articles 2 and 5, in conjunction with articles 6 and 7, of the Covenant and they maintain that they have sufficiently substantiated their claims for the purpose of admissibility, while reiterating their claim that if removed to the Bolivarian Republic of Venezuela they would be at risk of persecution due to their political opinions and the humanitarian situation in the country.⁹ They state that they did not travel to the State party in 2016 to visit relatives, but because they were forced to flee the Bolivarian Republic of Venezuela and apply for international protection.

9. The authors refer to various country reports on the humanitarian and security situation in the Bolivarian Republic of Venezuela, including: A/HRC/41/18; Office of the United Nations High Commissioner for Refugees, “Guidance note on the outflow of Venezuelans” (2018); and Organization of American States, OAS Working Group to Address the Regional Crisis Caused by Venezuela’s Migrant and Refugee Flows (2019). ↩

The authors also note that, on 27 September 2019, D.P.S. and A.S.P. were taken into immigration custody by the police. They were stripped naked and searched and their mobile phones were impounded. They were then placed in separate prison cells, in which the lights were on 24 hours a day. They were transferred to a closed immigration centre on 30 September 2019. On 8 October 2019, D.P.S. and A.S.P. appealed the detention decision against them. The appeal was rejected on 9 October 2019 by the Migration Court, which noted that the authors had stated that they would not return voluntarily to the Bolivarian Republic of Venezuela, and it therefore considered that there was a risk that the authors would abscond. On 10 October 2019, D.P.S. and A.S.P. were deported to the Bolivarian Republic of Venezuela accompanied by Swedish police officers. They were questioned by Venezuelan police who wished to know which crimes had been committed for the State party to decide to deport them. D.P.S. and A.S.P. were not given any assistance by the Swedish police officers and they were left at the airport in Caracas. If not for the assistance provided by family members in Sweden, they would have been unable to arrange for transport from the airport to their home town, some 300 km from the airport. F.J.S. and K.L.P. were deported to the Bolivarian Republic of Venezuela on 11 October 2019, also accompanied by police officers. At the request of F.J.S. and K.L.P., the Swedish police had issued a document stating that they had not committed any crimes in Sweden and that they had not been deported for any crime. The family was reunited on 12 October 2019. The authors argue that the fact that they were not detained by the Venezuelan authorities on arrival does not indicate that they would not be at risk of persecution by the Government. They note that, upon return to the Bolivarian Republic of Venezuela, they were without housing, work or other means, and therefore had no other option than to leave the country for Brazil on 24 October 2019.

The authors note that they submitted a renewed application for an impediment to enforcement of the expulsion order against them, which was rejected on 4 October 2019 by the Migration Agency and upheld by the Migration Court and Migration Court of Appeal on 18 October and 4 December 2019, respectively.

In addition to the claims raised in their initial complaint, the authors claim that, through its actions, the State party has violated their rights under the following articles of the Covenant: (a) article 2 by failing to respect and ensure the authors’ rights under the Covenant and their right to an effective remedy; (b) article 9 (1) as the detention of D.P.S. and A.S.P. was arbitrary and disproportionate and made in order to coerce them into signing papers for voluntary repatriation, which they resisted; (c) article 10 (1) as the right of D.P.S. and A.S.P. to treatment with humanity and dignity was not respected; (d) article 13 by failing to allow the authors to effectively submit their arguments to the Migration Court against their expulsion within the specified deadline prior to their deportation; (e) article 14 (2) and (3) (b), (d) and (g) as their right to a fair trial was violated: (f) article 17 as they were subjected to arbitrary interference with their right to privacy and family life; (g) article 19 (1) and (2) as their right to hold opinions without interference and their right to freedom of expression were violated; (h) article 23 (1) by failing to protect the authors’ family unit; (i) article 24 by failing to protect K.L.P. against discrimination in the Bolivarian Republic of Venezuela; (j) article 25 (c) by failing to protect the authors’ right to have access to public services in the Bolivarian Republic of Venezuela; and (k) article 26 by failing to protect and guarantee the authors’ right to equality before the law without discrimination on the ground of political opinion.

On 26 March 2021, the State party submitted its observations on the merits of the communication and further observations on admissibility. It reiterates its argument that the communication should be found inadmissible pursuant to articles 2, 3 and 5 (2) (a) of the Optional Protocol. The State party notes that, in addition to articles 2, 5, 6 and 7 raised in their initial compliant, in their comments the authors also claim that there has also been a violation of articles 9 (1), 10 (1), 13, 14 (2) and (3) (b), (d) and (g), 17, 19 (1) and (2), 23 (1), 24, 25 (c) and 26 of the Covenant. It submits that those claims should be declared inadmissible as they are manifestly unfounded or inadmissible ratione materiae, pursuant to articles 2 and 3 of the Optional Protocol.

The State party submits that, in accordance with the Committee’s jurisprudence, the authors’ claims under article 14 should be declared inadmissible ratione materiae, pursuant to article 3 of the Optional Protocol.¹⁰ As regards the authors’ claims under article 13, the State party notes the authors’ claims that they were not allowed to effectively submit arguments against their expulsion to the Migration Court within the specified time and their right to a fair trial has thus been violated in a discriminatory matter. In that regard, the State party notes that the authors applied for asylum in the State party on 13 September 2016. The rejection of their application became final on 28 February 2017, when the Migration Court of Appeal refused leave to appeal. The authors subsequently submitted an application for reexamination of the issue of residence permits citing impediments to the enforcement of the expulsion order. The rejection of that application became final and non-appealable on 16 August 2017 by decision of the Migration Court of Appeal. The authors’ second application for impediments to enforcement of the expulsion order against them became final on 17 October 2018, by decision of the Migration Court of Appeal. The authors subsequently submitted a third application for residence permits citing impediments to the enforcement of the expulsion order, which was denied by final decision of the Migration Court of Appeal on 4 December 2019. In view of the information on the domestic proceedings, the State party submits that the authors have failed to sufficiently substantiate their claims under article 13 of the Covenant and this part of the communication should be declared inadmissible under article 2 of the Optional Protocol.

10. The State party refers to X v. Denmark (CCPR/C/110/D/2007/2010), para. 8.5; and X and X v. Denmark (CCPR/C/112/D/2186/2012), para. 6.3. ↩

The State party notes the authors’ claim that there has been a violation of article 19 since they are registered as political opponents of the Government of the Bolivarian Republic of Venezuela and article 25 (c) since they claim not to have access to public services in that country. The State party submits that those claims are incompatible ratione materiae with the Covenant insofar as States parties do not have the obligation to refrain from returning a person even if there is a risk that the person’s rights under articles 19 and 25 (c) of the Covenant will be violated because these articles do not apply outside the territory of a State party. The complaint as regards articles 19 and 25 (c) is based on the allegation that the authors’ rights under these provisions have been violated upon their return to the Bolivarian Republic of Venezuela. It is only on an exceptional basis that the Committee has ascribed extraterritorial scope to rights enshrined in the Covenant, thereby respecting the instrument’s largely territorial application, a practice that is also in line with the territorial application of the European Convention on Human Rights as defined by the European Court of Human Rights. Limiting a State’s power to control immigration at its borders by giving all the articles of the Covenant extraterritorial scope would amount to a denial of State sovereignty.

Regarding the authors’ claims under articles 6 and 7 of the Covenant, the State party notes the Committee’s jurisprudence to the effect that the mere possibility of being confronted with serious difficulties upon return to the country of origin does not, by itself, necessarily mean that the person in question would be in a special situation of vulnerability such as to conclude that a return would constitute a violation of the State party’s obligations under article 7 of the Covenant.¹¹ Thus, even if it could be assumed that, upon their return, the authors would face some challenges regarding support and supply of necessities, their expected situation would not be considered to be of such a character as to constitute grounds for protection; rather the claims must be individualized. In that regard, the State party submits that the authors’ claims have been thoroughly assessed by the migration authorities and it reiterates its arguments that, during the asylum proceedings, the authors did not plausibly demonstrate that there was an individual and specific threat against them in view of the circumstances. There had not been any threat from the authorities and the authors had been able to leave the Bolivarian Republic of Venezuela legally.

11. The State party refers to Hussein and X v. Denmark (CCPR/C/124/D/2734/2016), para. 9.9. ↩

The State party notes that the authors have also invoked articles 19, 23 (1), 24, 25 (c) and 26 of the Covenant. The State party argues that the authors have not substantiated why they consider that their rights under the above-mentioned provisions would be violated upon their return to the Bolivarian Republic of Venezuela. Notwithstanding that, the State party holds that those claims must form part of the factual context for allegations of irreparable harm contrary to articles 6 and 7 above and do not engage any separate obligations for the State party under articles 19, 23 (1), 24, 25 (c) and 26 of the Covenant.

The State party notes the authors’ claim that the migration authorities inadequately considered the principle of the best interests of the child in the domestic proceedings. It argues, however, that the impact of the rulings of the domestic authorities and courts on the children was considered in the present case. It follows from the case files from the domestic proceedings that, when the domestic authorities take decisions in matters regarding residence permits in cases concerning children, they must take account of the best interests of the child and the impact that the decision may have on matters including the health and development of the child. As such the principle of the best interests of the child was taken into account in the decisions taken by the Migration Agency dated 3 November 2016, 31 May and 27 October 2017 and 27 April 2018. For example, in the decision taken by the Migration Agency dated 31 May 2017, it was noted that, at the time of the decision, the authors had only been in Sweden for a very short time. A.S.P. and K.L.P. had therefore not established a connection with Swedish society, such that there would be special grounds not to enforce the expulsion order, even considering the best interests of the child under the Convention on the Rights of the Child and chapter 1, section 10, of the Aliens Act. Nor were there any other special grounds as to why the expulsion order should not be enforced. Accordingly, the State party argues that due consideration was given to the principle of the best interests of the child by the domestic authorities in accordance with article 24 of the Covenant.

Lastly, the State party notes that the authors also claim that there has been a violation of the Covenant in respect of how D.P.S. and A.S.P. were treated during custody and the enforcement of their expulsion order. It notes that, according to chapter 10, section 1, of the Aliens Act, a person who has attained the age of 18 may be detained for the purpose of enforcing an expulsion order. A detention order may only be issued if there is reason to assume that the person may otherwise go into hiding. In the present case, the State party notes that the authors had stated that they would not cooperate with the enforcement of their expulsion order to the Bolivarian Republic of Venezuela. In view of that, the Migration Agency decided to turn over the expulsion case to the police authority for enforcement pursuant to chapter 12, section 14, of the Aliens Act. The State party submits that the authors have not substantiated the allegation that – during their detention or in connection with the enforcement of the expulsion order – they were treated in any way contrary to the Covenant.

On 26 July 2021, the authors submitted their comments on the State party’s observations on the merits and further observations on admissibility. They refer to their previous submissions and maintain that the communication is admissible. They refer to country reports and note that the situation in the Bolivarian Republic of Venezuela for opponents of the Government has worsened with a crackdown on political opponents and demonstrators and they reiterate their claim that the humanitarian situation in the country and their having been registered as political opponents of the Government forced them to flee the country.¹² They claim that the cumulative discrimination that they faced in the Bolivarian Republic of Venezuela caused them to have a well-founded fear of irreparable harm and of a serious risk to their lives if they remained in the country.

12. The authors refer to: Freedom House, “Freedom in the World 2021 – Venezuela” (2021); Immigration and Refugee Board of Canada, “Venezuela: treatment of citizens by the authorities based on whether or not they participate in anti-government protests, including whether some are more targeted than others and for what reasons; whether access to social security programs may be affected by political activities (2017–January 2021)” (2021); and Human Rights Watch, World Report 2021: Events of 2020 (New York, 2021), pp. 732–742. ↩

On 23 November 2021, the State party submitted further observations on the communication. It reiterates that the communication should be found to be inadmissible. It notes the authors’ claims regarding the conditions of detention of D.P.S. and A.S.P. It reiterates its argument that there was a legal basis for their detention, which was ordered to ensure the enforcement of the expulsion orders given that they had stated that they would not voluntarily comply with those orders. It argues that there is nothing to suggest that the detention was punitive or lacked a legal basis. It notes that D.P.S. and A.S.P. were granted a public counsel for the purpose of the detention order and had the opportunity to challenge the order before the domestic courts. The State party submits that the detention order was thus proportionate to the aims pursued and that D.P.S. and A.S.P. had the necessary procedural guarantees during the detention.

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

The Committee notes the State party’s submission that the communication should be found inadmissible under article 5 (2) (a) of the Optional Protocol as it has already been examined under another procedure of international investigation or settlement, in accordance with the State party’s declaration upon ratification of the Optional Protocol. The Committee also notes the State party’s argument that, as the European Court of Human Rights found that the authors’ application did not disclose any appearance of a violation of the rights and freedoms set out in the European Convention on Human Rights or the Protocols thereto, it is evident that the Court declared the authors’ application inadmissible for reasons relating to the substance of their application, and that the Court has thus already examined the same matter. The Committee further notes the authors’ argument that, as they were subsequently granted, after the Court’s decision of inadmissibility, a new assessment of their asylum applications based on new circumstances, the same matter has not been examined by the Court. The Committee recalls its jurisprudence that, when the Court bases a decision of inadmissibility not solely on procedural grounds, but also on grounds based to some extent on a consideration of the merits of the case, then the same matter should be deemed to have been “examined” within the meaning of the respective reservations to article 5 (2) (a) of the Optional Protocol.¹³ In the present case, the Committee notes that, on 8 June 2017, the Court declared the authors’ application regarding the rejection of their asylum application in the State party inadmissible, finding that the application did not disclose any appearance of a violation of the rights and freedoms set out in the European Convention on Human Rights or the Protocols thereto, and that the admissibility criteria set out in articles 34 and 35 of the Convention had not been met. The Committee notes that the Court thus declared the authors’ application inadmissible not solely on procedural grounds, but also on grounds based to some extent on a consideration of the merits of the case. The Committee, however, notes that, following the decision by the Court, the authors subsequently initiated further proceedings in the State party that its authorities deemed were based on new circumstances that merited a reassessment of the authors’ case. Considering the fact that the domestic authorities granted the authors’ application for a new assessment of their application for residence permits based on new circumstances, which were not covered by the decision by the Court, the Committee thus finds that it is not precluded by article 5 (2) (a) of the Optional Protocol from considering the present communication.

13. For example, Mahabir v. Austria (CCPR/C/82/D/944/2000), para. 8.3; Linderholm v. Croatia (CCPR/C/66/D/744/1997), para. 4.2; and A.M. v. Denmark, communication No. 121/1982, para. 6. ↩

The Committee notes the State party’s submission that the authors’ claims should be found inadmissible as they are manifestly unfounded or inadmissible ratione materiae, pursuant to articles 2 and 3 of the Optional Protocol.

As regards the alleged violation of article 5 of the Covenant, the Committee notes that that article relates to general undertakings by States parties and cannot be invoked by individuals as a self-standing ground for a communication under the Optional Protocol.¹⁴ It also notes that the authors have not provided any specific arguments in relation to how that article is applicable to the present communication. The Committee thus finds the authors’ claim under article 5 to be inadmissible under article 3 of the Optional Protocol. It understands, however, that the authors’ claims under article 2 refer to article 2 (3) as being invoked in conjunction with the authors’ claims under articles 6 and 7 of the Covenant. The Committee will thus examine the authors’ claims under article 2 (3) as invoked in conjunction with the authors’ claims under articles 6 and 7 of the Covenant.

14. Wackenheim v. France (CCPR/C/75/D/854/1999) para. 6.5. ↩

Regarding the authors’ claims under articles 9 and 10 of the Covenant, the Committee notes that the authors invoked those claims after their complaint had been registered by the Committee. The Committee recalls its jurisprudence in which it stated that authors must raise all of their claims in their initial submission, before the State party is asked to provide its observations on admissibility and the merits of the communication, unless the authors can demonstrate why they were unable to raise all of their claims at the same time.¹⁵ In the present case, the Committee notes that the detention of D.P.S. and A.S.P. took place after the communication was registered and could thus not have been raised by the authors in their initial complaint. The Committee finds that the authors have thus demonstrated that they could not have raised their claims under articles 9 and 10 of the Covenant in their initial complaint.

15. D.Č. v. Lithuania (CCPR/C/134/D/3327/2019), para. 8.4; S.R. v. Lithuania (CCPR/C/132/D/3313/2019), para. 8.8; Jazairi v. Canada (CCPR/C/82/D/958/2000), para. 7.2; and B v. Australia (CCPR/C/137/D/2999/2017), para. 8.4. ↩

The Committee notes the authors’ claims that the detention of D.P.S. and A.S.P. was arbitrary and disproportionate and that their right to treatment with humanity and dignity was not respected during their detention. It notes the State party’s information that, according to chapter 10, section 1, of the Aliens Act, a person who has attained the age of 18 may be detained for the purpose of enforcing an expulsion order if there is reason to believe that the person may otherwise go into hiding. It also notes the State party’s argument that, in the present case, the authors were detained following their statements that they would not cooperate with the enforcement of their expulsion order. The Committee also notes the State party’s information that the authors were granted a public counsel for the purpose of the detention order and had the opportunity to challenge the detention order before the domestic courts. It notes the State party’s submission that the detention order was thus proportionate to the aims pursued and that the authors had the necessary procedural guarantees during the detention.

The Committee recalls that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.¹⁶ In the present case, the Committee notes that the detention order had a legal basis, namely chapter 10, section 1, of the Aliens Act, and it notes that D.P.S. and A.S.P. were detained from 27 September to 10 October 2019 in order to enforce the expulsion order against them, as they had been assessed, based on the statements that they had given to the migration authorities, not to be willing to cooperate with the expulsion order and to be at risk of absconding. The Committee finds, based on the information on file and taking the above information into account, that the authors have not substantiated that their detention was not reasonable, necessary and proportionate in the light of the circumstances of their case or that their treatment was contrary to article 10 of the Covenant. It finds the authors’ claims under articles 9 and 10 to be insufficiently substantiated and thus inadmissible under article 2 of the Optional Protocol.

16. General comment No. 35 (2004), para. 18. ↩

As regards the authors’ claim that they were not afforded a fair trial by the migration authorities in violation of article 14 of the Covenant, the Committee refers to its jurisprudence according to which 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 but are governed by article 13 of the Covenant. The Committee therefore considers that the authors’ claims under article 14 are inadmissible ratione materiae pursuant to article 3 of the Optional Protocol.¹⁷

17. See, for example, Chadzjian et al. v. Netherlands (CCPR/C/93/D/1494/2006), para. 8.4; X v. Denmark, para. 8.5; and X and X v. Denmark, para. 6.3. ↩

The Committee notes the authors’ claims that their rights under article 13 of the Covenant were violated by the State party’s failure to allow the authors to effectively submit their arguments against their expulsion to the Migration Court within the specified deadline prior to their deportation. The Committee notes that the authors applied for asylum in the State party on 13 September 2016. The rejection of their application became final on 28 February 2017, when the Migration Court of Appeal refused leave to appeal. The authors subsequently submitted three applications for re-examination citing impediments to the enforcement of the expulsion orders against them. Each application was appealed up to the court of final instance, namely, the Migration Court of Appeal. Considering the fact that the authors thus initiated numerous proceedings in the State party, which were assessed by the authorities up to the court of final instance, the Committee considers that the authors have failed to substantiate their claims under article 13 of the Covenant and finds the claims inadmissible under article 2 of the Optional Protocol.

The Committee notes that the authors have claimed that their deportation to the Bolivarian Republic of Venezuela amounted to a violation of their rights under articles 17, 19 (1) and (2), 23 (1), 24, 25 (c) and 26 of the Covenant. It also notes, however, that the authors have not submitted any specific information or arguments regarding those claims, nor have they provided any explanation of why those articles were not invoked in their initial submission. The Committee thus finds the claims inadmissible under articles 2 and 3 of the Optional Protocol.

The Committee notes the authors’ claim that their rights under articles 6 and 7, read alone and in conjunction with article 2 (3), of the Covenant were violated by the State party’s rejection of their applications for asylum. The Committee also notes their claim that the State party’s authorities failed to adequately assess their asylum applications. It further notes the State party’s argument that social or economic reasons are not grounds for granting an application for asylum and that there is no reason to conclude that the relevant rulings by the domestic authorities were inadequate, or that the outcome of the domestic proceedings was in any way arbitrary or amounted to a manifest error or denial of justice.

The 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 referred to their obligation not to extradite, deport, expel or otherwise remove a person from their territory when there were substantial grounds for believing that there was 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. All relevant facts and circumstances must be considered, including the general human rights situation in the author’s country of origin.¹⁸ The Committee recalls that it is generally for the organs of States parties to examine the facts and evidence of the case in question in order to determine whether such a risk exists,¹⁹ unless it can be established that the assessment was clearly arbitrary or amounted to a manifest error or denial of justice.²⁰ The Committee recalls that, in cases in which a person has been expelled prior to the consideration of the complaint, the Committee assesses what the State party knew or should have known at the time of expulsion.²¹ It also recalls that an author bears the burden of proof to support the allegations of a personal and real risk of irreparable harm if deported, including the obligation to submit evidence sufficiently in advance of the decisions of the national domestic authorities, unless the information could not have been presented before.²²

18. For example, X v. Denmark, para. 9.2; Q.A. v. Sweden (CCPR/C/127/D/3070/2017), para. 9.3; and A.E. v. Sweden (CCPR/C/128/D/3300/2019), para. 9.3. ↩
19. For example, Pillai et al. v. Canada (CCPR/C/101/D/1763/2008), para. 11.4; and Z.H. v. Australia (CCPR/C/107/D/1957/2010), para. 9.3. ↩
20. For example, K v. Denmark (CCPR/C/114/D/2393/2014), para. 7.4; Y.A.A. and F.H.M. v. Denmark (CCPR/C/119/D/2681/2015) para. 7.3; Rezaifar et al. v. Denmark (CCPR/C/119/D/2512/2014), para. 9.3; Q.A. v. Sweden, para. 9.3; and A.E. v. Sweden, para. 9.3. ↩
21. Sogi v. Canada (CAT/C/39/D/297/2006), para. 10.8; Tebourski v. France (CAT/C/38/D/300/2006), para. 8.1; Agiza v. Sweden (CAT/C/34/D/233/2003), para. 13.2; Kalinichenko v. Morocco (CAT/C/47/D/428/2010), para. 15.2; L.M. v. Canada (CAT/C/63/D/488/2012), para. 11.2; and J.M. v. Netherlands (CAT/C/66/D/768/2016), para. 10.2. ↩
22. See, for example, I.K. v. Denmark (CCPR/C/125/D/2373/2014), para. 9.7; M.P. et al. v. Denmark (CCPR/C/121/D/2643/2015), para. 8.7; A.E. v. Sweden, para. 9.7; and H.G. v. Sweden (CCPR/C/132/D/3266/2018), para. 6.7. ↩

In the present case, the Committee notes the authors’ submission that the assessment by the State party’s authorities of their asylum claims was inadequate and did not accurately take into account the claims raised by them during the domestic proceedings, as well as the information available on the country of origin. The Committee also notes that, in the domestic decisions, the migration authorities noted that there was an economic, social and political crisis in the Bolivarian Republic of Venezuela and that high-profile opposition figures were at risk of arbitrary arrest. It found, however, that the authors did not have such a profile. It noted that, although the humanitarian crisis had worsened, it had not worsened to such an extent that everyone from the Bolivarian Republic of Venezuela was entitled to international protection, and that for such protection to be granted there needed to be a substantiated personal risk. In that connection, the migration authorities noted the authors’ claims that they had signed a referendum petition in 2004 but had not received any threats or been subjected to violence because of this. The migration authorities also noted that the authors had been issued passports in 2014 and had travelled out of the Bolivarian Republic of Venezuela without any problems. In their assessment, the migration authorities found that it had not been substantiated that the authors would be unable to obtain jobs in the Bolivarian Republic of Venezuela to support themselves, if deported, considering that the authors had been in employment before leaving the country and had been able to access medical care while they were there. The migration authorities concluded in their assessment that the authors had been able to manage their everyday social and financial situation and that there was no evidence to support the authors’ claims that they had been denied housing, healthcare or education. The Committee notes that the authors’ claims regarding the examination of their application for asylum mainly reflect their disagreement with the factual conclusions concerning country of origin information. The Committee also notes, however, that the domestic authorities considered all the claims raised by the authors and it finds that the authors have not demonstrated that the conclusions of the domestic authorities were clearly arbitrary or amounted to a manifest error or denial of justice.

The Committee therefore concludes that the authors have failed to substantiate, for the purposes of admissibility, their claims under articles 6 and 7, read alone and in conjunction with article 2 (3), of the Covenant and finds the claims inadmissible under article 2 of the Optional Protocol.

The Committee therefore decides: (a) That the communication is inadmissible under articles 2 and 3 of the Optional Protocol;