Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 904/2018*, **

Communication submitted by:N.A.O. (represented by former counsel, Johanna Eriksson Ahlén, and by counsel, Cecilia von Koch)

Alleged victim:The complainant

State party:Sweden

Date of complaint:21 December 2018 (initial submission)

Document references:Decision taken pursuant to rules 114 and 115 of the Committee’s rules of procedure, transmitted to the State party on 24 December 2018 (not issued in document form)

Date of adoption of decision:19 July 2021

Subject matter:Deportation to Ethiopia

Procedural issue :Admissibility – manifestly ill-founded

Substantive issue:Risk of torture or other cruel, inhuman or degrading treatment or punishment, if deported to country of origin (non-refoulement)

Article of the Convention:3

1.1The complainant is N.A.O., a national of Ethiopia born in 1979. Her request for asylum in the State party was rejected, and she risks forcible removal to Ethiopia. The complainant claims that the State party, if it were to proceed with her deportation, would violate her rights under article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 8 January 1986. The complainant is represented by counsel.

1.2On 24 December 2018, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Ethiopia while the communication was being considered by the Committee. Following the Committee’s request for interim measures, the State party decided to suspend the enforcement of the complainant’s expulsion order until further notice.

1.3In a note verbale dated 20 June 2019, the State party requested the Committee to lift the interim measures. On 31 March 2020, the Committee, again acting through its Rapporteur on new complaints and interim measures, denied the request of the State party to lift the interim measures.

Facts as submitted by the complainant

2.1The complainant, a national of Ethiopia of Somali ethnicity who belongs to the Ogaden clan, was born, according to the information received, in Buqdhabu, Aware, Ethiopia. She is married to a man belonging to the same clan and they have seven children. She asserts that her husband and other family members had been active in the Ogaden National Liberation Front, a rebel group fighting for Somali rights in Somali Region, Ethiopia. As a consequence of her close relatives’ activities within the Ogaden National Liberation Front, she was presumed to have subscribed to the same political views.

2.2In March 2015, several representatives of the Ethiopian Liyu Police visited the complainant’s home to inquire as to her husband’s whereabouts. As she did not know his exact location and could only answer that her husband was away looking for lost camels, the officials beat her. A few days later, the officials returned. The complainant and her brother, who also held a position with the Ogaden National Liberation Front, were both severely beaten and the complainant’s brother was shot several times. They were then taken to two separate cars, and the complainant has not heard from her brother since this incident. She was held in detention for approximately four months in a prison where she was subjected to severe acts of torture. She was forced to watch videos of sexual abuse and rape and witnessed other prisoners being tortured and raped while being threatened with the same treatment unless she provided information about her husband. She was detained in inhumane conditions, without water and sanitation, deprived of sleep, with insufficient food and drink and with no access to health care. She also suffered other forms of physical assault, such as being kicked by booted individuals, burned with a heated pipe, hit with electric cords on the feet, and confined in a small container and exposed to extreme heat.

2.3When her health condition severely deteriorated, the complainant was released after the payment of a bribe by her aunt, on the condition that she return to prison as soon as her health permitted. The aunt, without the knowledge of her husband, who held a high-ranking government position, helped the complainant reach the capital and contact a human trafficker, who assisted the complainant in fleeing the country.

2.4The complainant applied for asylum in Sweden on 6 October 2015. The Swedish Migration Agency rejected her application on 12 September 2017. It found that the complainant’s oral account lacked details and reliability to such an extent that it could not form the basis of the assessment of her alleged need for protection. In particular, the Swedish Migration Agency found it peculiar that the complainant lacked knowledge of the Ogaden National Liberation Front even though her close male relatives had been involved in the activities of the organization. Furthermore, she could not answer whether the officials looking for her husband were representatives of the police or of the military. She further provided contradictory information regarding the circumstances of her and her brother’s apprehension.

2.5This decision was appealed before the Migration Court, which rejected the appeal on 28 June 2018. In the court proceedings, the complainant claimed for the first time that she had been subjected to torture and submitted a medical report issued by the Swedish Red Cross Treatment Centre. The Migration Court did not accept the complainant’s explanations regarding the discrepancies detected in her asylum account by the Swedish Migration Agency. Even though the Migration Court accepted that she had been subjected to torture in the past, the Court found, given the lack of credibility of her narrative, that it was not probable that she would face a present risk of ill-treatment upon her return to Ethiopia. On 7 August 2018, the Migration Court of Appeal refused leave to appeal and the decision to expel the complainant became final.

Complaint

3.1The complainant claims that her deportation to Ethiopia would constitute a violation of her rights under article 3 of the Convention. She claims that there are substantial grounds for believing that, if deported, she would be subjected to torture or other cruel, inhuman or degrading treatment or punishment at the hands of the authorities of Ethiopia.

3.2In particular, the complainant alleges that she has been subjected to ill-treatment in the past by representatives of the Ethiopian Liyu Police. She underlines that the medical examination performed in accordance with the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) attests to her account of having been subjected to torture. She asserts that her statements also coincide with the general country information on Ethiopia as established in a country report produced by the Ministry of Immigration and Integration of Denmark, according to which there is a high risk of persecution for persons affiliated with the Ogaden National Liberation Front, especially for detainees in Somali Region.

3.3She further asserts that the domestic authorities relied heavily on minor discrepancies detected in her account. In this regard, she submits that she explained to the authorities that those inconsistencies partly stemmed from errors of interpretation, from the fact that the interpreter was a man, which prevented her from effectively challenging these errors, and from the fact that she had been diagnosed with post-traumatic stress disorder, causing her severe memory loss. She submits that her inability to answer clearly whether the Ethiopian Liyu Police should be considered a police or military force is explained by the fact that, even according to the relevant country information, there is no simple answer to that question. The Liyu Police is a government-founded paramilitary special police force that has been implicated in numerous acts of human rights abuse against civilians in Somali Region, whose legal status remains unclear. Regarding her allegedly scarce knowledge about the Ogaden National Liberation Front, she notes that, according to the travaux préparatoires of the State party’s Aliens Act, knowledge of family members’ political activities is not indication of a person’s own political opinion. Considering also the cultural differences, the complainant’s lack of insight into the activities of the Ogaden National Liberation Front should not have served as a basis for a negative finding regarding her credibility.

3.4With regard to the present human rights situation in Ethiopia, the complainant submits that, even though there have been some recent developments between the various stakeholders, it is not possible to foresee at the present time whether these developments will indeed entail positive changes on the ground. She submits that her country of origin remains a corrupt place and that there is no guarantee that she would not be subjected to ill-treatment if deported, given her past persecution and given the fact that she has escaped from the country to avoid imprisonment. She thus concludes that, if she were to be deported to Ethiopia, she would face a foreseeable, personal and real risk of torture, in violation of article 3 of the Convention.

State party’s observations on admissibility and the merits

4.1On 20 June 2019, the State party submitted its observation on admissibility and the merits of the communication. The State party refers to its relevant domestic legislation and points out that the authorities considered the complainant’s case in accordance with the Aliens Act of 2005 and article 3 of the Convention. It recalls the facts on which the communication is based, as well as the complainant’s claims.

4.2The State party does not contest that the complainant has exhausted domestic remedies. However, it submits that the communication should be declared inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s rules of procedure, because the complainant’s claim that her expulsion to Ethiopia would amount to a breach of article 3 of the Convention fails to achieve the minimum level of substantiation. However, in the event that the Committee declares the communication admissible, it should find that the complainant’s expulsion to Ethiopia would not constitute a breach of the Convention.

4.3According to the State party, the assessments by the Swedish Migration Agency and the Migration Court reveal that they thoroughly examined the complainant’s oral and written submissions. The State party recalls that the Committee has previously held that it is for the courts of States parties, rather than for the Committee, to evaluate facts and evidence, unless the courts’ evaluation is clearly arbitrary or amounts to a denial of justice. In the case at hand, there is no reason to conclude that the assessments by the State party’s authorities of the complainant’s claim for international protection was arbitrary or amounted to a denial of justice. These assessments must therefore be accorded considerable weight.

4.4Furthermore, the State party submits that, while it does not wish to underestimate the concerns that may legitimately be expressed with respect to the current human rights situation in Ethiopia, the general human rights situation in the country is not such as to entail a general need to protect all asylum seekers. Moreover, the complainant has not shown that she personally faces a real risk of treatment contrary to article 3 of the Convention upon return to Ethiopia. Both the Swedish Migration Agency and the Migration Court held hearings and interviews and conducted thorough examinations. The complainant thus had ample opportunities to support her claims orally and in writing. The State party’s authorities have thus had sufficient information to adequately assess the complainant’s claim for international protection.

4.5The State party explains that, in its overall assessment of the complainant’s case, the Swedish Migration Agency found the complainant’s account to be neither credible nor such as to conclude that she was in need of international protection. Specifically, in its first-instance decision of 12 September 2017, the Swedish Migration Agency found it implausible that, even though she claimed that her family had been involved with the Ogaden National Liberation Front for several years and that she sympathized with the group’s cause, she was unable to specify any of the group’s main characteristics except that they were fighting for independence for Somalis in Somali Region in Ethiopia. Nor was she able to provide any detailed information regarding her family’s level of commitment to the group. Furthermore, the Swedish Migration Agency noted that, even though the complainant claimed to have been visited by representatives of the Government of Ethiopia on more than one occasion, she did not know how many people had come to look for her husband, to which part of the Government they belonged or whether they were police officers or soldiers. She provided contradictory information concerning a number of events that were of great importance to the account she gave in the course of the asylum proceedings. For example, she made conflicting statements about whether her brother had been killed or only shot and arrested at her home, and at what point he told the authorities about her husband’s involvement in the Ogaden National Liberation Front. She also provided inconsistent information concerning the time of her arrest, in particular whether it had happened on the day on which her brother had been shot or two days later, when the officials returned.

4.6The State party asserts that the Migration Court, in its judgment of 28 June 2018, did not question the claim that the complainant had sustained the injuries documented in the investigation and documentation of torture. However, the investigation alone was not considered sufficient to plausibly demonstrate that the complainant faced risks of threat in Ethiopia. In this regard, the State party underlines that the Migration Court concurred with the Swedish Migration Agency’s negative assessment of the complainant’s credibility. In particular, the Migration Court found it peculiar that during the asylum investigation the complainant had stated that her husband’s only assignment had been to supply the Ogaden National Liberation Front with food, whereas at the Court’s oral hearing she had stated that her husband had also supported the group financially and supplied it with information. The Migration Court could not accept the complainant’s explanation that the inconsistency stemmed from errors of interpretation, because she had failed to duly signal these errors by commenting on the minutes of her interviews. In addition, she had never mentioned before that she did not dare to confront the interpreter because he was a man. She further provided unclear information as to the position of her brother within the Ogaden National Liberation Front. Lastly, the Migration Court questioned the complainant’s narrative about the circumstances of her release and her escape to the State party, especially because it found it implausible, given her poor medical condition, that she had been able to travel to Sweden without seeking medical help. The Migration Court also found it peculiar that the complainant could leave Ethiopia despite having been under surveillance.

4.7The State party notes that the complainant provided conflicting statements as to the number of her brothers killed by the representatives of the Government of Ethiopia, and as to whether she had travelled with her aunt to Addis Ababa immediately after her release, or had stayed in her aunt’s house before travelling to the capital.

4.8The State party infers that the discrepancies detected in the complainant’s account are of crucial importance. Even though she now claims that these contradictions partly result from her post-traumatic stress disorder, which caused her severe memory loss, her health status has never been cited as a reason for not being able to provide a coherent account in support of her request for asylum. In fact, there appears to be no mention of verified memory dysfunction in the report submitted by the complainant.

4.9In the light of the foregoing, the State party finds no reason to question the conclusions reached by the domestic authorities and holds that the complainant’s substantiation of her claims is insufficient to conclude that she faces a foreseeable, personal, present and real risk of ill-treatment upon her return to Ethiopia, contrary to article 3 of the Convention.

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

5.1On 17 October 2019, the complainant commented on the State party’s observations. She maintains her arguments related to the admissibility of the complaint as presented in her initial submission. As to the merits of the complaint, she claims that, although this information does not appear in the documents, the female public defender originally assigned to her case was replaced by a man until after the Swedish Migration Agency had delivered its decision. She repeats that the interpreter too was a man. She claims that, even though she officially had the right to challenge the minutes of the hearings and raise her torture claims in the first-instance proceedings, she was unable to do so owing to her fear of men, which comes from cultural differences and the ill-treatment by men that she has experienced.

5.2In response to the State party’s allegations concerning the death of her older brothers, she submits that she did not find the information about the death of her older brothers relevant given that they were already dead at the time of her arrest and given that her youngest brother was the only one present when the impugned incidents occurred. Regarding her alleged inconsistency about the exact time of her younger brother’s death, she submits that her brother was so severely injured that she took it for granted that he had been killed. However, while in detention, she was told that her brother was still alive, information that had never been confirmed. This is the primary reason why she has sometimes been inconsistent about the alleged death of her younger brother.

5.3She further reiterates that she is an uneducated woman who finds it hard to contest or raise issues in settings where she feels inferior owing to her cultural background. She recalls that she suffers from post-traumatic stress disorder and that erroneous translation may add to the slight inconsistency of her narrative.

5.4She further points out that, although the national authorities accepted that she had been subjected to torture, they concluded at the same time that it has not been shown that this was indeed connected to her perceived political opinion, without, however, putting forward any plausible explanation for how they consider the complainant to have sustained her injuries. In addition, it has been highlighted in her medical report, based on an assessment conducted in accordance with the Istanbul Protocol, that she insisted on the importance of meeting with female professionals owing to her distrust of men. In spite of this fact, several men were present during the court hearing before the Migration Court, which may raise doubts as to the fairness of the proceedings because, procedurally speaking, the complainant’s special needs have never been addressed. This is all the more problematic because these claims have been examined only by the Migration Court as the complainant was afraid of raising her torture claims any earlier in the proceedings. In this respect, the Migration Court’s assessment and the fairness of the proceedings could never be challenged since the Migration Court of Appeal did not grant her request for leave to appeal.

5.5Lastly, the complainant notes that, in spite of the reports referred to by the State party, the human rights situation in Ethiopia is still fragile and, given her personal circumstances, she maintains that she faces a foreseeable and real risk of being subjected to ill-treatment, in breach of article 3 of the Convention, if deported to Ethiopia.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any complaint submitted in a communication, the Committee must decide whether the communication is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same matter has not been and is not being examined under another procedure of international investigation or settlement.

6.2In accordance with article 22 (5) (b) of the Convention, the Committee shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes that the complainant appealed the negative decision on her asylum application to the Migration Court and that she sought leave to appeal to the Migration Court of Appeal, which denied her request on 7 August 2018. The Committee notes that, in the present case, the State party has not contested that the complainant has exhausted all available domestic remedies. Accordingly, the Committee considers that it is not precluded by article 22 (5) (b) of the Convention from examining the present communication.

6.3The State party submits that the communication is inadmissible as manifestly unfounded. The Committee considers, however, that the claims put forward by the complainant raise substantive issues that should be examined on the merits. As the Committee finds no obstacles to admissibility, it declares the communication admissible and proceeds with its consideration of the merits.

Consideration of the merits

7.1In accordance with article 22 (4) of the Convention, the Committee has considered the communication in the light of all the information made available to it by the parties.

7.2In the present case, the issue before the Committee is whether the return of the complainant to Ethiopia would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.

7.3The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Ethiopia. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights.However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned.It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk.Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

7.4The Committee recalls its general comment No. 4 (2017), according to which the Committee will assess “substantial grounds” and consider the risk of torture as foreseeable, personal, present and real when the existence of credible facts relating to the risk by itself, at the time of its decision, would affect the rights of the complainant under the Convention in case of his or her deportation.Indications of personal risk may include, but are not limited to: (a) the complainant’s ethnic background; (b) political affiliation or political activities of the complainant or his or her family members; (c) arrest or detention without guarantee of a fair trial and treatment; (d) sentence in absentia; and (e) previous torture (para. 45). With respect to the merits of a communication submitted under article 22 of the Convention, the burden of proof is upon the author of the communication, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, present, personal and real. However, when complainants are in a situation where they cannot elaborate on their case, such as when they have demonstrated that they have no possibility of obtaining documentation relating to their allegation of torture or have been deprived of their liberty, the burden of proof is reversed, and the State party concerned must investigate the allegations and verify the information on which the complaint is based. The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned; however, it is not bound by such findings, as it can make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.

7.5In assessing the risk of torture in the present case, the Committee notes the complainant’s claim that she would face a risk of treatment contrary to article 3 of the Convention if she were returned to Ethiopia since she was presumed to have subscribed to particular political views as a consequence of the activities that her relatives had performed within the Ogaden National Liberation Front and because she left Ethiopia even though she was supposed to return to prison to serve her sentence. The Committee takes note of her contention that several of her relatives were killed because of their association with the Ogaden National Liberation Front and that she had been imprisoned, tortured and subjected to various forms of ill-treatment, including sexual violence, by representatives of the government of Ethiopia.The Committee is mindful of the medical/psychological report brought before it as proof of the complainant’s allegations of torture. It notes the complainant’s claim that the Swedish asylum authorities were wrong to determine that her submissions were not credible, as her narrative had been thorough and consistent and she had provided explanations for all the alleged discrepancies detected in her account.

7.6Nonetheless, the Committee observes that the State party’s authorities considered that the complainant’s narrative was not credible because she provided inconsistent and vague statements concerning essential elements of her account. In this respect, the Committee notes the State party’s assertion that the complainant’s explanations for these inconsistencies have not been accepted as she failed to duly challenge the minutes of the hearings, nor did she mention before the authorities that she feared to confront the interpreter because he was a man. In addition, the complainant has never put before the domestic authorities that her medical condition, namely the progression of chronic post-traumatic stress disorder, may have interfered with her ability to provide complete and coherent accounts relevant to her case. The Committee also notes the State party’s position that the medical/psychological report issued by the Swedish Red Cross Treatment Centre was not in itself considered sufficient to plausibly demonstrate that the complainant faces risks of threat if returned to Ethiopia. The Committee further notes the State party’s statement that the Migration Court also questioned the complainant’s narrative about the circumstances of her release and her escape to Sweden, especially because it found it implausible that she had been able travel to Sweden without seeking medical help in spite of her poor medical condition and that she could leave Ethiopia even though she had been under the surveillance of the Government of Ethiopia.

7.7In carrying out its assessment, the Committee observes that the complainant did not report any irregularities in the national asylum proceedings apart from mentioning in her last submission to the Committee that the proceedings were conducted in the presence of several men, which, in her case, may raise doubts as to the fairness of the proceedings. She explains that it was indicated in her medical/psychological report that she insisted on the importance of meeting with female professionals owing to her distrust of men. The Committee considers, however, that the complainant failed to show that she had explicitly requested the asylum authorities not to conduct the proceedings in the presence of men or to find other ways to accommodate her needs in this regard.

7.8The Committee notes that the complainant has had ample opportunities to provide supporting evidence and further details of her claims, but that the evidence she provided did not allow the national asylum authorities to conclude that her past experiences of arrest and torture would expose her to a risk of being subjected to torture if she were returned to Ethiopia. In this regard, the Committee notes that the complainant’s sequelae were not contested by the national authorities, but that the Migration Court held that the medical/psychological report alone did not establish the origin of those sequelae. Therefore, and in the light of the inconsistencies detected in her oral statements, the State party held that the medical/psychological report could not confirm the complainant’s narrative. Taking also into consideration that complete accuracy is seldom to be expected from victims of torture, the Committee considers that the domestic authorities may have been relying heavily on the complainant’s negative credibility assessment even though some inconsistencies in the complainant’s statements may have originated in translation errors or may have been reasonably explained.

7.9In any event, the Committee recalls that ill-treatment suffered in the past is only one element to be taken into account, the relevant question before the Committee being whether the complainant currently runs a risk of torture if returned to Ethiopia. The Committee considers that, even if it were to disregard the alleged inconsistencies in the complainant’s account of her past experiences in Ethiopia and accept her statements as true, the complainant has not provided any information credibly indicating that she would presently be of interest to the authorities of Ethiopia. In this regard, the Committee observes that the complainant did not profess, either to the national authorities or to the Committee, to have taken part in political activities in Ethiopia. Nor did she claim to have been engaged in political activities of diaspora groups during her stay in Sweden. In addition, the fact that the complainant was able to leave Ethiopia without any incident also shows the lack of interest of the State authorities in her whereabouts, especially because she could not establish that she had left the country illegally. Furthermore, she did not submit any evidence to demonstrate that the Ethiopian authorities are looking for her, either on the grounds of past events or for any other reason. The Committee therefore considers that the complainant has failed to adduce sufficient evidence to establish that her presumed past affiliation with the Ogaden National Liberation Front based on the membership of her relatives in the organization would be of enough significance to attract the real interest of the Ethiopian authorities.

7.10The Committee is aware of the past reports of human rights violations, including the use of torture, in Ethiopia and the crackdown on political dissidents and arrests of bloggers and journalists.Nonetheless, it recalls that, for the purposes of article 3 of the Convention, the individual concerned must face a foreseeable, personal, present and real risk of being tortured in the country to which he or she is returned, considering that past arrests do not as such represent substantial grounds for believing that such a risk is present. In view of the foregoing, the Committee considers that the information submitted by the complainant is insufficient to establish that, almost six years after the alleged events occurred, she would be at a foreseeable, personal and real risk of torture if she were returned to Ethiopia.

8.In the light of the foregoing, the Committee, acting under article 22 (7) of the Convention, concludes that the return of the complainant to Ethiopia by the State party would not constitute a violation of article 3 of the Convention.