Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 1040/2020 * , **

Communication submitted by:R.R. (represented by counsel, Fazil Ahmet Tamer and Nesrin Ulu)

Alleged victim:The complainant

State party:Switzerland

Date of complaint:16 November 2020 (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 November 2020 (not issued in document form)

Date of adoption of decision:9 May 2023

Subject matter:Deportation to Azerbaijan

Procedural issue :Level of substantiation of claims

Substantive issue:Risk of torture upon return to country of origin (non-refoulement)

Articles of the Convention :3, 14 and 16

1.1The complainant is R.R., a national of Azerbaijan born in 1988. He claims that Switzerland would violate his rights under articles 3, 14 and 16 of the Convention if it removed him to Azerbaijan. The State party has made the declaration pursuant to article 22(1) of the Convention, effective from 2 December 1986. The complainant is represented by counsel, Fazil Ahmet Tamer and Nesrin Ulu.

1.2On 24 November 2020, pursuant to rule 114 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 Azerbaijan while his case was being considered by the Committee. On 30 November 2020, the State party informed the Committee of its intention to comply with the interim measures.

Facts as submitted by the complainant

2.1The complainant states that, between 2015 and 2017, he was employed by AT‑GEOTECH, an Azerbaijani public company based in Baku. Through this work, he gained access to confidential information of public interest. For example, from the company’s technical analysis, he learned that there were technical issues with one of the three Flame Towers in Baku. As the person responsible for payroll at a gold mine, he found out that the mine was being run exclusively for the benefit of members of the ruling party and their families. He shared that information with his friends without knowing that E.Z., a journalist present during the conversation, would later publish it. In July 2017, the complainant was arrested by officers of the Ministry of National Security. He was interrogated and tortured for three days. He was accused of having leaked classified information to the media. E.Z. was arrested in 2017, and criminal proceedings, which appeared to be fabricated,were opened against him for another reason. The complainant provides an untranslated copy of an email, written in Azeri and allegedly sent by E.Z., in which E.Z. confirmed that he knew the complainant but stated that he was unable to provide any further explanation in the circumstances.

2.2In October 2017, the complainant and his parents left Azerbaijan for Germany, where they requested asylum. Under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 (the Dublin III Regulation), he was transferred to Switzerland, where he applied for asylum on 25 April 2018. The State Secretariat for Migration conducted a summary interview with the complainant on 11 May 2018 and held a hearing on 7 January 2020 to ascertain the reasons for his asylum request.

2.3On 21 June 2018, an Azerbaijani newspaper published an article in which the complainant was described as “EldarMahmudov’s man”. Mr. Mahmudov, the former Minister for National Security, had faced criminal charges in Azerbaijan along with other officers of the Ministry. The complainant notes that one of the co-defendants in that case allegedly attempted suicide.

2.4On 30 April 2020, the State Secretariat for Migration rejected the complainant’s asylum request, citing his lack of credibility as the main reason. The State Secretariat ordered the complainant to leave Switzerland by 31 June 2020. On 5 June 2020, he appealed to the Federal Administrative Court. On 22 September 2020, the Court rejected his appeal.

2.5On 26 September 2020, the complainant requested the Federal Administrative Court to review its judgment of 22 September 2020, providing some additional evidence that he had recently managed to obtain from Azerbaijan, namely an arrest warrant issued against him by the Main Police Department of Baku on 23 June 2020 and a judgment of Nasimi District Court of 27 July 2020. In accordance with that judgment, the complainant was sentenced to six years in prison under articles 284 (1) (disclosure of State secrets) and 308(1) (abuse of official powers) of the Criminal Code of Azerbaijan. The complainant notes that his conviction was based solely on eyewitness accounts and that the judgment did not contain any details about the classified information allegedly disclosed by him and the circumstances of that alleged disclosure. The complainant assumes that the Court did not wish to reveal the secrets in question. The complainant notes that the 20-day deadline for appealing the judgment has expired.

2.6On 28 September 2020, the Federal Administrative Court suspended the expulsion order. The Court lifted the suspension on 1 October 2020. On 4 November 2020, the Court rejected the complainant’s request for review.

2.7On 11 January 2021, the complainant submitted a copy of a letter from the monitoring centre for political prisoners in Baku. The letter contained a summary of the complainant’s allegations of the persecution that he had faced in Azerbaijan. In the letter, it was noted that E.Z. had taken down the article that, according to the complainant, had triggered the criminal proceedings against him. It was also noted that, on 27 July 2020, the complainant had been sentenced in a fabricated criminal case to six years in prison by Nasimi District Court and that, given the authoritarian and repressive regime in the country, the complainant would be imprisoned if he returned to Azerbaijan. It was stated at the end of the letter that its content was based on documents submitted to the centre.

Complaint

3.1The complainant claims that his deportation to Azerbaijan would result in a violation by the State party of articles 3, 14 and 16 of the Convention. The complainant refers to the Committee’s decisions in the cases of Harun v. Switzerland and A.N. v. Switzerland. He submits that torture is used as an interrogation method in Azerbaijan and claims that it would be reasonable to assume that he would be exposed to torture and other forms of inhuman treatment if removed to Azerbaijan.

3.2The complainant refers to an article published by the newspaper Cumhuriyet on 22June 2018, reports by the Department of State of the United States of America, Human Rights Watch and Amnesty International on the human rights situation in Azerbaijan in 2019 and 2020 and publications about the criminal case against officers of the Ministry of National Security.

State party’s observations on the merits

4.1In its observations on the merits, of 14 July 2021, the State party confirms the complainant’s description of the national asylum procedure, adding that, in early July 2017, the complainant applied for a Swiss visa, but his request was rejected.

4.2The State party refutes the complainant’s allegation that article 3 of the Convention would be violated in case of his removal to Azerbaijan. It notes that the Committee, in accordance with its jurisprudence, should determine whether the complainant would be personally at risk of being subjected to torture in Azerbaijan. In line with the Committee’s general comment No. 4 (2017), and taking into account a pattern of human rights violations in his country of origin, the complainant should demonstrate that the risk of his being subjected to torture is foreseeable, present, personal and real (paras. 11 and 38).

4.3According to the State party, the complainant reiterates the arguments advanced in the asylum proceedings without addressing the arguments of the national authorities. All the evidence attached to the communication either has been examined by the national authorities or cannot be used to challenge their conclusions. In his letter, E.Z. stated only that he knew the complainant but could not provide any further explanation in the circumstances. The international reports indicating that the Azerbaijani authorities practise torture are of a general nature and cannot modify an assessment of the personal risk of torture or inhuman treatment faced by the complainant. As for the alleged risks in relation to the case of Mr.Mahmudov, the communication does not contain any information that was not provided to the asylum authorities, and the newspaper articles cited by the complainant have no relation to him.

4.4The State party insists that factual inconsistencies exist in the complainant’s allegations and that he lacks credibility. The State Secretariat for Migration found that the complainant’s statements about the publication of confidential information by E.Z. and his claim that the Azerbaijani authorities had thereby been alerted to him lacked credibility. The State Secretariat revealed that, during his first interview, on 11 May 2018, the complainant claimed to have been arrested on 7 June 2017, whereas, during his second interview, on 7January 2020, he claimed to have been arrested on 19 July 2017. The State Secretariat noted that it was surprising that the complainant would have shared confidential information about the company at which he worked with a journalist whom he had never previously met, knowing that he risked arrest. In relation to the case of Mr. Mahmudov, the State Secretariat noted that the complainant claimed that he was not personally acquainted with him and that he had never worked with him, either directly or indirectly. The State Secretariat concluded that, since the complainant could not provide a credible explanation as to why his name had been mentioned in an article on Mr. Mahmudov, it could not pronounce itself on the matter. Moreover, the State Secretariat noted that being identified in the article as an agent of Mr.Mahmudov did not suffice to substantiate a risk of persecution. If the complainant had been falsely accused of being an agent of Mr. Mahmudov, he could have acted in defence of his rights in Azerbaijan, in particular since there were no credible reasons to believe that the Azerbaijani authorities would try to falsely accuse him. The State Secretariat underlined that the case involved high-ranking officers of the Ministry of National Security and/or public officials close to Mr. Mahmudov. However, it did not appear from the case file that the complainant had such a profile. The State Secretariat noted that Mr. Mahmudov had been removed from office in October 2015 but had not been arrested and remained free.

4.5The State party proceeds to explain the reasoning on which the Federal Administrative Court based its judgment of 22 September 2020. The Court noted numerous contradictions and inconsistencies in the complainant’s statements. The Court pointed out that, during his first interview with the State Secretariat for Migration on 11 May 2018, the complainant claimed to have transmitted confidential information to the media without knowing that it was forbidden to do so, which leads to the assumption that the complainant had intentionally shared the information with the media, without being aware of the consequences of his actions. Subsequently, however, he claimed to have shared that information with a friend and a journalist, without wanting it to be published, as he knew that its publication would lead to his arrest. In other words, the complainant claimed that he had shared the information despite knowing that doing so could entail serious consequences for him. Furthermore, during his first interview, the complainant indicated that he had shared the information with the press in 2016. He claimed that, following its publication, E.Z. had been arrested and that E.Z.’s lawyer had contacted him to warn him. However, E.Z. was arrested in June 2017, several months after the alleged disclosure of the information. Moreover, the complainant later claimed that E.Z.’s lawyer had instead contacted his friend, as he himself had nothing to do with the journalist. The Court noted that, according to the complainant’s statements, his duties as a technical procurement specialist for AT-GEOTECH included maintaining laboratory documents, processing information relating to research on precious metals, transporting gold ore samples and paying salaries. However, as noted by the Court, even if the complainant possessed a wide range of skills and had received training in economics, his professional duties appeared unusually broad for a technical procurement specialist. The Court concluded that the complainant had attempted, through that broad description of his tasks, to justify why he would have had access to information that the Government would not want to disclose. The Court recalled that the complainant had provided conflicting dates of his alleged interrogation by security officers. However, as underlined by the Court, the complainant’s arrest should have been a dramatic event for him, since he had never previously faced issues with the police and had never been interrogated, beaten or intimidated for several hours. Consequently, the Court concluded that the complainant’s inconsistent statements were surprising, even if the events in question had occurred more than two years previously. The Court observed that the complainant claimed to have been summoned to a police station on two occasions after his release. During his first interview, on 11 May 2018, he claimed that the summonses had been issued within a month of his release, whereas the summonses that he produced were dated 22 September and 2 October 2017. Moreover, the Court recalled that the complainant’s request for a Swiss visa had been rejected on 3 July 2017, whereas, according to his statements, he had been arrested on 19 July 2017. Consequently, the Court noted that the first visa request had been made before the complainant had experienced the alleged issues with the authorities.

4.6As to the mention of the complainant’s name in an article on Mr. Mahmudov, the Federal Administrative Court concluded that, since the complainant had not demonstrated in a credible manner that he had come to the attention of the Azerbaijani authorities, he was not at any risk of being prosecuted on trumped-up criminal charges. The Court noted that Azerbaijan was not in a state of war or civil war or in a situation of generalized violence. The Court took note of the complainant’s allegations that the filing of trumped-up criminal charges was a common method used by the Azerbaijani authorities against the media and political opponents. However, the Court observed that the complainant did not have a political profile because, according to his own statements, he was not politically active. Moreover, he was not a journalist and had not criticized the Government. Owing to the complainant’s implausible statements, the Court concluded that it did not appear credible that he had been persecuted by the Azerbaijani authorities. The Court noted that, even if the complainant was in fact facing the prospect of criminal prosecution in Azerbaijan, he could defend himself by legal means. The Court concluded that it did not appear from the case file and from the complainant’s statements that he risked being subjected to torture or ill‑treatment in Azerbaijan and that the human rights situation in Azerbaijan did not appear such as to make the deportation unlawful.

4.7The State party informs the Committee that, before the asylum authorities, the complainant alleged that, following his refusal to acknowledge having leaked confidential information, another trumped-up criminal case had been mounted against him, in which he had been accused of having defrauded a person of $20,000. The State Secretariat for Migration found that those allegations were not credible. The State party notes that the complainant is not reiterating those allegations before the Committee.

4.8The State party submits that the complainant requested a review of the judgment of the Federal Administrative Court of 22 September 2022, enclosing, as supporting documents, an arrest warrant issued by the Main Police Department of Baku on 23 June 2020 and the judgment of Nasimi District Court of 27 July 2020. In its judgment of 4 November 2020, the Federal Administrative Court stated that the complainant had the option of exploring – with the help of a lawyer, if necessary – the extraordinary remedies available to him to challenge the judgment of Nasimi District Court. The Federal Administrative Court underlined that its conclusions regarding the complainant’s appeal would have been the same even if that evidence had been included in the case file. The Federal Administrative Court concluded that the complainant would not qualify as a refugee even if his statements regarding the criminal proceedings initiated against him turned out to be true.

4.9The State party adds that, as demonstrated by the judgment of Nasimi District Court of 27 July 2020, the Azerbaijani authorities had the possibility of sanctioning the complainant lawfully. It would therefore have been illogical for them to prosecute him on trumped-up criminal charges. The State party notes that, if the complainant’s statements are true, and he has in fact leaked classified information, his conduct could amount to a criminal offence (i.e. violation of the secrecy of office), in which case his criminal prosecution would pursue legitimate objectives.

4.10While recognizing that allegations of past torture or ill-treatment are pertinent to an examination of the risk faced by the complainant in case of his return to Azerbaijan, the State party notes that the complainant has not provided any details about the torture that he allegedly suffered for three days in detention in July 2017. During the asylum proceedings, he stated only that he had been beaten during the interrogation. Thus, the complainant did not provide any evidence concerning his alleged ill-treatment. There is no apparent reason for the Government of Azerbaijan to prosecute the complainant on trumped-up criminal charges, in particular since the case file does not reveal that the complainant has been actively involved with the opposition or has a political profile. The complainant does not claim to have engaged in any political activities, either in Azerbaijan or in Switzerland. The State party assumes that the complainant must have been mentioned in an article on Mr.Mahmudov for reasons other than those that he gave during the asylum proceedings.

4.11The State party concludes that the communication does not contain anything not already evaluated in detail by the State Secretariat for Migration and the Federal Administrative Court that would demonstrate that the complainant would be exposed to a foreseeable, present, personal and real risk of torture in case of his removal to Azerbaijan. Consequently, in the State party’s opinion, there would be no violation of articles 3, 14 and 16 of the Convention in case of the complainant’s deportation.

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

5.1On 17 December 2021, the complainant submitted additional observations in response to the State party’s submissions.

5.2He emphasizes that he has been sentenced to six years in prison in a politically motivated case after publicly disclosing the corruption and illegal dealings of the Government of Azerbaijan. However, the State party has ignored the political nature of his case. While he has not engaged in political activities either in Azerbaijan or in the State party, it is not necessary to have a political profile in order to be prosecuted for political reasons. In response to the State party’s argument that his criminal conviction could pursue legitimate objectives, he insists that he has disclosed information about the crimes and corruption of the Government of Azerbaijan and that his actions cannot be viewed as a criminal offence in a democratic State.

5.3Referring to the judgment of Nasimi District Court and other evidence submitted to the asylum authorities, the complainant refutes the State party’s claims about his lack of credibility. In particular, he reiterates the importance of the article in which his name was mentioned in relation to Mr. Mahmudov, who was prosecuted as a dissident of the current regime. As for E.Z.’s email, the complainant notes that, by stating that he knew the complainant but could not provide further explanations in the circumstances, E.Z. showed that the complainant was under threat from the Government of Azerbaijan.

5.4With regard to the complainant’s account of how E.Z.’s lawyer informed him of E.Z.’s arrest, the complainant blames the contradictions in his statements on translation errors during the asylum proceedings or on his own mistakes in expressing his thoughts. He believes that his contradictory statements about the date of his arrest were simple mistakes, which did not substantially alter the truthfulness of his account. He recalls that, during his first interview, he claimed to have been arrested on 3 June 2017, which means that his application for a Swiss visa, dated 3 July 2017, was submitted after his arrest. He adds that, even if he had applied for the visa before the arrest, it would not have changed anything, as people in such situations are aware of the risks that they face.

5.5He contests the State party’s assertion that he could have used legal means to defend himself in the context of criminal proceedings in Azerbaijan, as it is not a democratic country and does not respect human rights. He refers in that regard to his conviction in absentia to six years in prison, which he considers unjust.

5.6He insists that, in the light of his experience of torture, the political nature of his case and the human rights situation in Azerbaijan, it is not possible for someone in his situation not to be tortured and not to be treated inhumanely in case of deportation. The complainant explains his inability to provide evidence of his torture as a consequence of the lack of human rights organizations in Azerbaijan that could support victims of torture.

5.7The complainant states that, while there is no war or civil war in Azerbaijan, there is widespread violence against political opponents. He agrees that the reports cited in his communication are of a general nature. However, he states that it is not possible to expect that all people whose rights have been violated will be named in such reports and that the reports still corroborate his claims about the risks that he faces in case of return to Azerbaijan.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any complaint submitted in a communication, the Committee must decide whether it 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.

6.2The Committee notes that the complainant has not provided any arguments to substantiate his claims under articles 14 and 16 of the Convention. The Committee notes in this regard that, while it found a violation of articles 14 and 15 in the case of A.N. v. Switzerland, which the complainant cites, the facts in that case differ significantly from those in the present case, which does not raise any issues in relation to the complainant’s rehabilitation as a victim of torture. The Committee therefore concludes that his claims under articles 14 and 16 of the Convention are inadmissible. The Committee believes that the complainant has sufficiently substantiated his claims under article 3 for the purposes of admissibility and proceeds with its consideration of the merits.

Consideration of the merits

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

7.2In the present case, the issue before the Committee is whether the forcible removal of the complainant to Azerbaijan 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 face a foreseeable, personal, present and real risk of being subjected to torture.

7.3The Committee recalls its general comment No. 4 (2017), according to which it considers 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) political affiliation or political activities of the complainant; (b) arrest and/or detention without guarantee of a fair treatment and trial; (c) sentence in absentia; (d) previous torture; and (e) incommunicado detention or other form of arbitrary and illegal detention in the country of origin (para. 45). To determine whether there are substantial grounds for believing that a person would be in danger of being subjected to torture if deported, the Committee must take into account all relevant considerations, including the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights, referred to in article 3 (2) of the Convention, including widespread use of torture and impunity of its perpetrators and widespread use of sentencing and imprisonment of persons exercising fundamental freedoms (para. 43). With respect to the application of article 3 of the Convention to the merits of a communication submitted under article 22, the burden of proof is generally upon the complainant 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 (para. 38). The Committee 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, considering all the circumstances relevant to each case (para. 50).

7.4In the present case, the complainant claims that, in case of his deportation, he would be at risk of treatment contrary to article 3 of Convention owing to the fact that torture is commonly used as an interrogation method in Azerbaijan. In support of his claims, he cites an article in which his name is mentioned in relation to a high-profile criminal case involving the former Minister for National Security; his alleged arbitrary detention and torture by officers of the Ministry of National Security in 2017; a criminal sentence imposed on him in absentia by Nasimi District Court on 27 July 2020; and reports indicating a widespread pattern of torture and the filing of trumped-up criminal charges in Azerbaijan.

7.5The Committee recalls that, in its concluding observations on the fourth periodic report of Azerbaijan, it expressed concern about numerous and persistent allegations of torture and ill-treatment routinely used by law enforcement and investigative officials, or with their instigation or consent, often to extract confessions or information to be used in criminal proceedings. The Committee notes that the Human Rights Committee has established that journalists and other individuals, such as bloggers, who publicly express opinions that are considered by the authorities of Azerbaijan as being critical of them seem to be particularly prone to being subjected to acts of torture, ill-treatment or harassment.

7.6The Committee notes, however, that the complainant’s claims about the personal risk that he faces of being subjected to torture in Azerbaijan have been thoroughly considered by the national asylum authorities, which established that the complainant did not have a political profile and that his statements about the reasons for his departure from Azerbaijan were inconsistent and lacked credibility.

7.7The Committee notes that, before the national authorities, and later before the Committee, the complainant has alleged that he was prosecuted in three different sets of criminal proceedings in Azerbaijan. First, before the State Secretariat for Migration, he claimed that a criminal complaint had been made against him by an unknown woman who had accused him of fraud. After examining the material evidence and the complainant’s statements in that regard, the State Secretariat concluded that those claims were not credible. The complainant has chosen not to reiterate those claims before the Committee. Second, the complainant has referred, both before the national authorities and before the Committee, to an article in which his name was mentioned in relation to a high-profile criminal case involving the former Minister for National Security and in which he was described as the latter’s agent. The Committee observes, however, that the case file before it does not contain any information about criminal proceedings opened against the complainant in that regard. Furthermore, the national asylum authorities established that Mr. Mahmudov had not been convicted of the alleged criminal offences and that the complainant’s statements about the reasons for his own name being mentioned in the article did not appear credible.

7.8Lastly, before the Committee and previously, in his request of 26 September 2020 for review by the Federal Administrative Court, the complainant invoked a third set of criminal proceedings, which allegedly resulted in him being sentenced to six years in prison for disclosure of State secrets and abuse of official powers. To support his claims, the complainant produced an arrest warrant dated 23 June 2020 and the judgment of Nasimi District Court of 27 July 2020. The Committee notes that those two pieces of evidence were submitted to the national authorities as part of the extraordinary review proceedings, only four days after the adoption by the Federal Administrative Court, on 22 September 2020, of the judgment by which the complainant’s asylum request was definitively rejected. The Committee notes the complainant’s argument that he did not manage to obtain those two pieces of evidence until September 2020. The Committee also notes, however, that it appears from the case file that, during the regular asylum proceedings, the complainant made no mention of the third set of criminal proceedings. The Committee further notes that, in its judgment of 4 November 2020, the Court concluded that, regardless of the unresolved question of its authenticity, the additional evidence could not modify its assessment of the complainant’s asylum request because the case file that it had previously examined under the ordinary appeals procedure already contained substantial evidence relating to the criminal proceedings allegedly brought against the complainant in Azerbaijan.

7.9The Committee notes that it appears from the case file that the criminal investigation against the complainant has already been completed and that the judgment of Nasimi District Court of 27 July 2020 has become final. Therefore, it does not appear that the complainant’s claims about the risk that he faces of being subjected to torture during interrogation are foreseeable, present and real.

7.10The Committee notes that some of the pieces of corroborating evidence submitted to the Committee following the rejection of the complainant’s asylum claim at the domestic level, such as E.Z.’s email and the letter from the monitoring centre for political prisoners, had not been submitted to the authorities of the State party. The Committee notes, however, that the complainant had ample opportunity to provide supporting evidence in the course of the domestic proceedings.

7.11In the light of the considerations above, and on the basis of all the information made available to it by the complainant and the State party, including information on the general situation of human rights in Azerbaijan, the Committee considers that, in the present case, the information on file does not allow it to conclude that the complainant’s return to Azerbaijan would expose him to a real, foreseeable, personal and present risk of being subjected to torture or that the authorities of the State party failed to conduct a proper investigation into his allegations.

8.The Committee, acting under article 22 (7) of the Convention, concludes that the complainant’s removal to Azerbaijan by the State party would not constitute a violation of article 3 of the Convention.