Annex II

States parties that have declared, at the time of ratification or accession,

that they do not recognize the competence of the Committee provided

for by article 20 of the Convention, as at 18 May 2001a

Afghanistan

Belarus

China

Cuba

Israel

Kuwait

Morocco

Saudi Arabia

Ukraine

aTotal of nine States parties.

Annex III

States parties that have made the declarations provided for in

articles 21 and 22 of the Convention,a as at 18 May 2001b

State party	Date of entry into force
Algeria	12 October 1989
Argentina	26 June 1987
Australia	29 January 1993
Austria	28 August 1987
Belgium	25 July 1999
Bulgaria	12 June 1993
Cameroon	11 November 2000
Canada	24 July 1987
Croatia	8 October 1991
Cyprus	8 April 1993
Czech Republic	3 September 1996
Denmark	26 June 1987
Ecuador	29 April 1988
Finland	29 September 1989
France	26 June 1987
Ghana	7 October 2000
Greece	5 November 1988
Hungary	26 June 1987
Iceland	22 November 1996
Italy	11 February 1989
Liechtenstein	2 December 1990
Luxembourg	29 October 1987
Malta	13 October 1990
Monaco	6 January 1992
Netherlands	20 January 1989
_______________________________ aJapan, the United Kingdom of Great Britain and Northern Ireland and the United States of America made only the declarations provided for in article 21 of the Convention. bTotal of 43 States parties.
New Zealand	9 January 1990
Norway	26 June 1987
Poland	12 June 1993
Portugal	11 March 1989
Russian Federation	1 October 1991
Senegal	16 October 1996
Slovakia	17 April 1995
Slovenia	16 July 1993
South Africa	10 December 1998
Spain	20 November 1987
Sweden	26 June 1987
Switzerland	26 June 1987
Togo	18 December 1987
Tunisia	23 October 1988
Turkey	1 September 1988
Uruguay	26 June 1987
Venezuela	26 April 1994
Yugoslavia	10 October 1991

Annex IV

Membership of the Committee against Torture in 2001

Name of members	Country of nationality	Term expires on 31 December
Mr. Peter Thomas BURNS	Canada	2003
Mr. Guibril CAMARA	Senegal	2003
Mr. Sayed Kassem EL MASRY	Egypt	2001
Ms. Felice GAER	United States of America	2003
Mr. Alejandro GONZÁLEZ POBLETE	Chile	2003
Mr. Andreas MOVROMMATIS	Cyprus	2003
Mr. António SILVA HENRIQUES GASPER	Portugal	2001
Mr. Ole Vedel RASMUSSEN	Denmark	2001
Mr. Alexander M. YAKOVLEV	Russian Federation	2001
Mr. YU Mengjia	China	2001

Annex V

Status of submission of reports by States parties under article 19 of the Convention, as at 18 May 2001

A. Initial reports

Initial reports due in 1988 (27)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Afghanistan Argentina Austria Belarus Belize	26 June 1987 26 June 1987 28 August 1987 26 June 1987 26 June 1987	25 June 1988 25 June 1988 27 August 1988 25 June 1988 25 June 1988	21 January 1992 15 December 1988 10 November 1988 11 January 1989 18 April 1991	CAT/C/5/Add.31 CAT/C/5/Add.12/Rev.1 CAT/C/5/Add.10 CAT/C/5/Add.14 CAT/C/5/Add.25
Bulgaria Cameroon Canada Denmark Egypt	26 June 1987 26 June 1987 24 July 1987 26 June 1987 26 June 1987	25 June 1988 25 June 1988 23 July 1988 25 June 1988 25 June 1988	12 September 1991 15/2/89 and 25/4/91 16 January 1989 26 July 1988 26/7/88 and 20/11/90	CAT/C/5/Add.28 CAT/C/5/Add.16 and 26 CAT/C/5/Add.15 CAT/C/5/Add.4 CAT/C/5/Add.5 and 23
France German Democratic Republic Hungary Luxembourg Mexico	26 June 1987 9 October 1987 26 June 1987 29 October 1987 26 June 1987	25 June 1988 8 October 1988 25 June 1988 28 October 1988 25 June 1988	30 June 1988 19 December 1988 25 October 1988 15 October 1991 10/8/88 and 13/2/90	CAT/C/5/Add.2 CAT/C/5/Add.13 CAT/C/5/Add.9 CAT/C/5/Add.29 CAT/C/5/Add.7 and 22
Norway Panama Philippines Russian Federation Senegal	26 June 1987 23 September 1987 26 June 1987 26 June 1987 26 June 1987	25 June 1988 22 September 1988 25 June 1988 25 June 1988 25 June 1988	21 July 1988 28 January 1991 26/7/88 and 28/4/89 6 December 1988 30 October 1989	CAT/C/5/Add.3 CAT/C/5/Add.24 CAT/C/5/Add.6 and 18 CAT/C/5/Add.11 CAT/C/5/Add.19 (Replacing Add.8)
Spain Sweden Switzerland Togo Uganda	20 November 1987 26 June 1987 26 June 1987 18 December 1987 26 June 1987	19 November 1988 25 June 1988 25 June 1988 17 December 1988 25 June 1988	19 March 1990 23 June 1988 14 April 1989	CAT/C/5/Add.21 CAT/C/5/Add.1 CAT/C/5/Add.17
Ukraine Uruguay	26 June 1987 26 June 1987	25 June 1988 25 June 1988	17 January 1990 6/6/91 and 5/12/91	CAT/C/5/Add.20 CAT/C/5/Add.27 and 30

Initial reports due in 1989 (10)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Chile China Colombia Czech and Slovak Federal Republic Ecuador	30 October 1988 3 November 1988 7 January 1988 6 August 1988 29 April 1988	29 October 1989 2 November 1989 6 January 1989 5 August 1989 28 April 1989 and 26/9/91	21/9/89 and 5/11/90 1 December 1989 24/4/89 and 28/8/90 21/11/89 and 14/5/91 27/6/90 and 28/2/91	CAT/C/7/Add.2 and 9 CAT/C/7/Add.5 and 14 CAT/C/7/Add.1 and 10 CAT/C/7/Add.4 and 12 CAT/C/7/Add.7 and 11 and 13
Greece Guyana Peru Tunisia Turkey	5 November 1988 18 June 1988 6 August 1988 23 October 1988 1 September 1988	4 November 1989 17 June 1989 5 August 1989 22 October 1989 31 August 1989	8 August 1990 9/11/92 and 22/2/94 25 October 1989 24 April 1990	CAT/C/7/Add.8 CAT/C/7/Add.15 and 16 CAT/C/7/Add.3 CAT/C/7/Add.6

Initial reports due in 1990 (11)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Algeria Australia Brazil Finland Guinea	12 October 1989 7 September 1989 28 October 1989 29 September 1989 9 November 1989	11 October 1990 6 September 1990 27 October 1990 28 September 1990 8 November 1990	13 February 1991 27/8/91-11/6/92 26 May 2000 28 September 1990	CAT/C/9/Add.5 CAT/C/9/Add.8 and 11 CAT/C/9/Add.16 CAT/C/9/Add.4
Italy Libyan Arab Jamahiriya Netherlands Poland Portugal	11 February 1989 15 June 1989 20 January 1989 25 August 1989 11 March 1989	10 February 1990 14 June 1990 19 January 1990 24 August 1990 10 March 1990	30 December 1991 14/5/91-27/8/92 14/3-11/9-13/9/90 22 March 1993 7 May 1993	CAT/C/9/Add.9 CAT/C/9/Add.7 and 12/Rev.1 CAT/C/9/Add.13 CAT/C/9/Add.13 CAT/C/9/Add.15
United Kingdom of Great Britain and Northern Ireland	7 January 1989	6 January 1990	22/3/91-30/4/92	CAT/C/9/Add.6,10 and 14

Initial reports due in 1991 (7)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Germany Guatemala Liechtenstein Malta New Zealand	31 October 1990 4 February 1990 2 December 1990 13 October 1990 9 January 1990	30 October 1991 3 February 1991 1 December 1991 12 October 1991 8 January 1991	9 March 1992 2/11/94 and 31/7/95 5 August 1994 3 January 1996 29 July 1992	CAT/C/12/Add.1 CAT/C/12/Add.5 and 6 CAT/C/12/Add.4 CAT/C/12/Add.7 CAT/C/12/Add.2
Paraguay Somalia	11 April 1990 23 February 1990	10 April 1991 22 February 1991	13 January 1993	CAT/C/12/Add.3

Initial reports due in 1992 (10)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Croatia Cyprus Estonia Israel Jordan	8 October 1991 17 August 1991 20 November 1991 2 November 1991 13 December 1991	7 October 1992 16 August 1992 19 November 1992 1 November 1992 12 December 1992	4 January 1996 23 June 1993 25 January 1994 23 November 1994	CAT/C/16/Add.6 CAT/C/16/Add.2 CAT/C/16/Add.4 CAT/C/16/Add.5
Nepal Romania Venezuela Yemen Yugoslavia	13 June 1991 17 January 1991 28 August 1991 5 December 1991 10 October 1991	12 June 1992 16 January 1992 27 August 1992 4 December 1992 9 October 1992	6 October 1993 14 February 1992 8 July 1998 20 January 1998	CAT/C/16/Add.3 CAT/C/16/Add.1 CAT/C/16/Add.8 CAT/C/16/Add.7

Initial reports due in 1993 (8)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Benin Bosnia and Herzegovina Cambodia Cape Verde Czech Republic	11 April 1992 6 March 1992 14 November 1992 4 July 1992 1 January 1993	10 April 1993 5 March 1993 13 November 1993 3 July 1993 31 December 1993	12 February 2001 18 April 1994	CAT/C/21/Add.3 CAT/C/21/Add.2
Latvia Monaco Seychelles	14 May 1992 5 January 1992 4 June 1992	13 May 1993 4 January 1993 3 June 1993	14 March 1994	CAT/C/21/Add.1

Initial reports due in 1994 (8)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Antigua and Barbuda Armenia Burundi Costa Rica Mauritius	18 August 1993 13 October 1993 20 March 1993 11 December 1993 8 January 1993	17 August 1994 12 October 1994 19 March 1994 10 December 1994 7 January 1994	20/4/95 and 21/12/95 10 August 2000 10/5/94-1/3/95	CAT/C/24/Add.4 and Rev.1 CAT/C/24/Add.7 CAT/C/24/Add.1 and 3
Morocco Slovakia Slovenia	21 July 1993 28 May 1993 15 August 1993	20 July 1994 27 May 1994 14 August 1994	29 July 1994 1 May 2000 10 August 1999	CAT/C/24/Add.2 CAT/C/24/Add.6 CAT/C/24/Add.5

Initial reports due in 1995 (7)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Albania Ethiopia Georgia Namibia Sri Lanka	10 June 1994 13 April 1994 25 November 1994 28 December 1994 2 February 1994	9 June 1995 12 April 1995 24 November 1995 27 December 1995 1 February 1995	4 June 1996 23 August 1996 27 October 1997	CAT/C/28/Add.1 CAT/C/28/Add.2 CAT/C/28/Add.3
The former Yugoslav Republic of Macedonia United States of America	12 December 1994 20 November 1994	11 December 1995 19 November 1995	22 May 1998 15 October 1999	CAT/C/28/Add.4 CAT/C/28/Add.5

Initial reports due in 1996 (6)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Chad Cuba Republic of Korea Republic of Moldova Tajikistan	9 July 1995 16 June 1995 8 February 1995 28 December 1995 10 February 1995	8 July 1996 15 June 1996 7 February 1996 27 December 1996 9 February 1996	15 November 1996 10 February 1996	CAT/C/32/Add.2 CAT/C/32/Add.1
Uzbekistan	28 October 1995	27 October 1996	18 February 1999	CAT/C/32/Add.3

Initial reports due in 1997 (8)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Azerbaijan Côte d’Ivoire Democratic Republic of the Congo El Salvador Iceland	15 September 1996 17 January 1996 17 April 1996 17 July 1996 22 November 1996	14 September 1997 16 January 1997 16 April 1997 16 July 1997 21 November 1997	18 December 1998 5 July 1999 12 February 1998	CAT/C/37/Add.3 CAT/C/37/Add.4 CAT/C/37/Add.2
Kuwait Lithuania Malawi	7 April 1996 2 March 1996 11 July 1996	6 April 1997 1 March 1997 10 July 1997	5 August 1997	CAT/C/37/Add.1

Initial reports due in 1998 (4)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Honduras Kenya Kyrgyzstan Saudi Arabia	4 January 1997 23 March 1997 5 October 1997 22 October 1997	3 January 1998 22 March 1998 4 October 1998 21 October 1998	9 February 1999 27 February 2001	CAT/C/42/Add.1 CAT/C/42/Add.2

Initial reports due in 1999 (6)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Bahrain Bangladesh Indonesia Kazakhstan Niger	5 April 1998 4 November 1998 27 November 1998 25 September 1998 4 November 1998	4 April 1999 3 November 1999 26 November 1999 24 September 1999 3 November 1999	7 February 2001 15 August 2000	CAT/C/47/Add.3 CAT/C/47/Add.1
Zambia	6 November 1998	5 November 1999	1 December 2000	CAT/C/47/Add.2

Initial reports due in 2000 (8)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Belgium Bolivia Burkina Faso Japan Mali	25 July 1999 12 May 1999 3 February 1999 29 July 1999 28 March 1999	25 July 2000 11 May 2000 2 February 2000 29 July 2000 27 March 2000	16 May 2000	CAT/C/52/Add.1
Mozambique South Africa Turkmenistan	14 October 1999 9 January 1999 25 July 1999	14 October 2000 8 January 2000 25 July 2000

Initial reports due in 2001 (5)

State party	Date of entry into force	Initial report date due	Date of submission	Symbol
Qatar Ghana Botswana Gabon Lebanon	10 February 2000 7 October 2000 8 October 2000 8 October 2000 4 November 2000	9 February 2001 6 October 2001 7 October 2001 7 October 2001 3 November 2001

B. Second periodic reports

Second periodic reports due in 1992 (26)

State party	Second periodic report date due	Date of submission	Symbol
Afghanistan Argentina Austria Belarus Belize	25 June 1992 25 June 1992 27 August 1992 25 June 1992 25 June 1992	29 June 1992 12 October 1998 15 September 1992	CAT/C/17/Add.2 CAT/C/17/Add.21 CAT/C/17/Add.6
Bulgaria Cameroon Canada Denmark Egypt	25 June 1992 25 June 1992 23 July 1992 25 June 1992 25 June 1992	19 June 1998 20 November 1999 11 September 1192 22 February 1995 13 April 1993	CAT/C/17/Add.19 CAT/C/17/Add.22 CAT/C/17/Add.5 CAT/C/17/Add.13 CAT/C/17/Add.11
France Hungary Luxembourg Mexico Norway	25 June 1992 25 June 1992 28 October 1992 25 June 1992 25 June 1992	19 December 1996 23 September 1992 3 August 1998 21 July 1992 and 28 May 1996 25 June 1992	CAT/C/17/Add.18 CAT/C/17/Add.8 CAT/C/17/Add.20 CAT/C/17/Add.3 and Add.17 CAT/C/17/Add.1
Panama Philippines Russian Federation Senegal Spain	22 September 1992 25 June 1992 25 June 1992 25 June 1992 19 November 1992	21 September 1992 17 January 1996 27 March 1995 19 November 1992	CAT/C/17/Add.7 CAT/C/17/Add.15 CAT/C/17/Add.14 CAT/C/17/Add.10
Sweden Switzerland Togo Uganda Ukraine	25 June 1992 25 June 1992 17 December 1992 25 June 1992 25 June 1992	30 September 1992 28 September 1993 31 August 1992	CAT/C/17/Add.9 CAT/C/17/Add.12 CAT/C/17/Add.4
Uruguay	25 June 1992	25 March 1996	CAT/C/17/Add.16

Second periodic reports due in 1993 (9)

State party	Second periodic report date due	Date of submission	Symbol
Chile China Colombia Ecuador Greece	29 October 1993 2 November 1993 6 January 1993 28 April 1993 4 November 1993	16 February 1994 2 December 1995 4 August 1995 21 April 1993 6 December 1993	CAT/C/20/Add.3 CAT/C/20/Add.5 CAT/C/20/Add.4 CAT/C/20/Add.1 CAT/C/20/Add.2
Guyana Peru Tunisia Turkey	17 June 1993 5 August 1993 22 October 1993 31 August 1993	20 January 1997 10 November 1997	CAT/C/20/Add.6 CAT/C/20/Add.7

Second periodic reports due in 1994 (11)

State party	Second periodic report date due	Date of submission	Symbol
Algeria Australia Brazil Finland Guinea	11 October 1994 6 September 1994 27 October 1994 28 September 1994 8 November 1994	23 February 1996 19 October 1999 11 September 1995	CAT/C/25/Add.8 CAT/C/25/Add.11 CAT/C/25/Add.7
Italy Libyan Arab Jamahiriya Netherlands Poland Portugal	10 February 1994 14 June 1994 19 January 1994 and 27/3/95 24 August 1994 10 March 1994	20 July 1994 30 June 1994 14/4/94 and 16/6/94 7 May 1996 7 November 1996	CAT/C/25/Add.4 CAT/C/25/Add.3 CAT/C/25/Add.1,2 and 5 CAT/C/25/Add.9 CAT/C/25/Add.10
United Kingdom of Great Britain and Northern Ireland	6 January 1994	25 March 1995	CAT/C/25/Add.6

Second periodic reports due in 1995 (7)

State party	Second periodic report date due	Date of submission	Symbol
Germany Guatemala Liechtenstein Malta New Zealand	30 October 1995 3 February 1995 1 December 1995 12 October 1995 8 January 1995	17 December 1996 13 February 1997 3 September 1998 29 September 1998 25 February 1997	CAT/C/29/Add.2 CAT/C/29/Add.3 CAT/C/29/Add.5 CAT/C/29/Add.6 CAT/C/29/Add.4
Paraguay Somalia	10 April 1995 22 February 1995	10 July 1996	CAT/C/29/Add.1

Second periodic reports due in 1996 (10)

State party	Second periodic report date due	Date of submission	Symbol
Croatia Cyprus Estonia Israel Jordan	7 October 1996 16 August 1996 19 November 1996 1 November 1996 12 December 1996	5 March 1998 12 September 1996 6 December 1996 and 7 February 1997 (special report) 26 February 1998	CAT/C/33/Add.4 CAT/C/33/Add.1 C/33/Add.2/Rev.1 CAT/C/33/Add.3
Nepal Romania Venezuela Yemen Yugoslavia	12 June 1996 16 January 1996 27 August 1996 4 December 1996 9 October 1996	1 September 2000	CAT/C/33/Add.5

Second periodic reports due in 1997 (8)

State party	Second periodic report date due	Date of submission	Symbol
Benin Bosnia and Herzegovina Cambodia Cape Verde Czech Republic	10 April 1997 5 March 1997 13 November 1997 3 July 1997 31 December 1997	14 February 2000	CAT/C/38/Add.1
Latvia Monaco Seychelles	13 May 1997 4 January 1997 3 June 1997

Second periodic reports due in 1998 (8)

State party	Second periodic report date due	Date of submission	Symbol
Antigua and Barbuda Armenia Burundi Costa Rica Mauritius	17 August 1998 12 October 1998 19 March 1998 10 December 1998 7 January 1998	15 June 1999 8 June 1998	CAT/C/43/Add.3 CAT/C/43/Add.1
Morocco Slovakia Slovenia	20 July 1998 27 May 1998 14 August 1998	2 September 1998	CAT/C/43/Add.2

Second periodic reports due in 1999 (7)

State party	Second periodic report date due	Date of submission	Symbol
Albania Ethiopia Georgia Namibia Sri Lanka	9 June 1999 12 April 1999 24 November 1999 27 December 1999 1 February 1999	15 November 1999	CAT/C/48/Add.1
The former Yugoslav Republic of Macedonia United States of America	11 December 1999 19 November 1999

Second periodic reports due in 2000 (6)

State party	Second periodic report date due	Date of submission	Symbol
Chad Cuba Republic of Korea Republic of Moldova Tajikistan	8 July 2000 15 June 2000 7 February 2000 27 December 2000 9 February 2000
Uzbekistan	27 October 2000	29 November 2000	CAT/C/53/Add.1

Second periodic reports due in 2001 (8)

State party	Second periodic report date due	Date of submission	Symbol
Azerbaijan Côte d’Ivoire Democratic Republic of the Congo El Salvador Iceland	14 September 2001 16 January 2001 16 April 2001 16 July 2001 21 November 2001
Kuwait Lithuania Malawi	6 April 2001 1 March 2001 10 July 2001

C. Third periodic reports

Third periodic reports due in 1996 (26)

State party	Third periodic report date due	Date of submission	Symbol
Afghanistan Argentina Austria Belarus Belize	25 June 1996 25 June 1996 27 August 1996 25 June 1996 25 June 1996	26 September 1996 29 September 1999	CAT/C/34/Add.5 CAT/C/34/Add.12
Bulgaria Cameroon Canada Denmark Egypt	25 June 1996 25 June 1996 23 July 1996 25 June 1996 25 June 1996	19 October 1999 5 July 1996 30 October 1998	CAT/C/34/Add.13 CAT/C/34/Add.3 CAT/C/34/Add.11
France Hungary Luxembourg Mexico Norway	25 June 1996 25 June 1996 28 October 1996 25 June 1996 25 June 1996	21 April 1998 30 October 2000 25 June 1996 6 February 1997	CAT/C/34/Add.10 CAT/C/34/Add.14 CAT/C/34/Add.2 CAT/C/34/Add.8
Panama Philippines Russian Federation Senegal Spain	22 September 1996 25 June 1996 25 June 1996 25 June 1996 19 November 1996	19 May 1997 5 December 2000 18 November 1996	CAT/C/34/Add.9 CAT/C/34/Add.15 CAT/C/34/Add.7
Sweden Switzerland Togo Uganda Ukraine	25 June 1996 25 June 1996 17 December 1996 25 June 1996 25 June 1996	23 August 1996 7 November 1996 19 June 1996	CAT/C/34/Add.4 CAT/C/34/Add.6 CAT/C/34/Add.1
Uruguay	25 June 1996

Third periodic reports due in 1997 (9)

State party	Third periodic report date due	Date of submission	Symbol
Chile China Colombia Ecuador Greece	29 October 1997 2 November 1997 6 January 1997 28 April 1997 4 November 1997	5 May 1999 29 November 1999	CAT/C/39/Add.2 CAT/C/39/Add.3
Guyana Peru Tunisia Turkey	17 June 1997 5 August 1997 22 October 1997 31 August 1997	12 December 1998	CAT/C/39/Add.1

Third periodic reports due in 1998 (11)

State party	Third periodic report date due	Date of submission	Symbol
Algeria Australia Brazil Finland Guinea	11 October 1998 6 September 1998 27 October 1998 28 September 1998 8 November 1998	16 November 1998	CAT/C/44/Add.6
Italy Libyan Arab Jamahiriya Netherlands Poland Portugal	10 February 1998 14 June 1998 19 January 1998 24 August 1998 10 March 1998	22 July 1998 2 September 1998 3 September 1998 and 27 December 1999 11 November 1998 2 February 1999	CAT/C/44/Add.2 CAT/C/44/Add.3 CAT/C/44/Add.4 and 8 CAT/C/44/Add.5 CAT/C/44/Add.7
United Kingdom of Great Britain and Northern Ireland	6 January 1998	2 April 1998	CAT/C/44/Add.1

Third periodic reports due in 1999 (7)

State party	Third periodic report date due	Date of submission	Symbol
Germany Guatemala Liechtenstein Malta New Zealand	30 October 1999 3 February 1999 1 December 1999 12 October 1999 8 January 1999	18 January 2000	CAT/C/49/Add.2
Paraguay Somalia	10 April 1999 22 February 1999	14 June 1999	CAT/C/49/Add.1

Third periodic reports due in 2000 (10)

State party	Third periodic report date due	Date of submission	Symbol
Croatia Cyprus Estonia Israel Jordan	7 October 2000 16 August 2000 19 November 2000 1 November 2000 12 December 2000	15 March 2001	CAT/C/54/Add.1
Nepal Romania Venezuela Yemen Yugoslavia	12 June 2000 16 January 2000 27 August 2000 4 December 2000 9 October 2000

Third periodic reports due in 2001 (8)

State party	Third periodic report date due	Date of submission	Symbol
Benin Bosnia and Herzegovina Cambodia Cape Verde Czech Republic	10 April 2001 5 March 2001 13 November 2001 3 July 2001 31 December 2001
Latvia Monaco Seychelles	13 May 2001 4 January 2001 3 June 2001

D. Fourth periodic reports

Fourth periodic reports due in 2000 (26)

State party	Fourth periodic report date due	Date of submission	Symbol
Afghanistan Argentina Austria Belarus Belize	25 June 2000 25 June 2000 27 August 2000 25 June 2000 25 June 2000
Bulgaria Cameroon Canada Denmark Egypt	25 June 2000 25 June 2000 23 July 2000 25 June 2000 25 June 2000	4 August 2000 19 February 2001	CAT/C/55/Add.2 CAT/C/55/Add.6
France Hungary Luxembourg Mexico Norway	25 June 2000 25 June 2000 28 October 2000 25 June 2000 25 June 2000	15 September 2000	CAT/C/55/Add.4
Panama Philippines Russian Federation Senegal Spain	22 September 2000 25 June 2000 25 June 2000 25 June 2000 19 November 2000	8 January 2001	CAT/C/55/Add.5
Sweden Switzerland Togo Uganda Ukraine	25 June 2000 25 June 2000 17 December 2000 25 June 2000 25 June 2000	21 August 2000 31 July 2000	CAT/C/55/Add.3 CAT/C/55/Add.1
Uruguay	25 June 2000

Fourth periodic reports due in 2001 (9)

State party	Fourth periodic report date due	Date of submission	Symbol
Chile China Colombia Ecuador Greece	29 October 2001 2 November 2001 6 January 2001 28 April 2001 4 November 2001
Guyana Peru Tunisia Turkey	17 June 2001 5 August 2001 22 October 2001 31 August 2001

Annex VI

Country rapporteurs and alternate rapporteurs for the

reports of States parties considered by the Committee

at its twenty-fifth and twenty-sixth sessions

A. Twenty-fifth session

Report	Rapporteur	Alternate
Armenia: second periodic report (CAT/C/43/Add.3)	Mr. Camara	Mr. Yakovlev
Belarus: third periodic report (CAT/C/34/Add.12)	Ms. Gaer	Mr. Burns
Australia: second periodic report (CAT/C/25/Add.11)	Mr. Mavrommatis	Mr. Rasmussen
Canada: third periodic report (CAT/C/34/Add.13)	Ms. Gaer	Mr. El Masry
Cameroon: second periodic report (CAT/C/17/Add.22)	Mr. Camara	Mr. El Masry
Guatemala: third periodic report (CAT/C/49/Add.2)	Mr. Gonzalez Poblete	Mr. Rasmussen
B. Twenty-sixth session
Report	Rapporteur	Alternate
Georgia: second periodic report (CAT/C/48/Add.1)	Mr. Yakovlev	Mr. Mavrommatis
Greece: third periodic report (CAT/C/39/Add.3)	Mr. Burns	Mr. Rasmussen
Czech Republic: second periodic report (CAT/C/38/Add.1)	Mr. Mavrommatis	Mr. El Masry
Slovakia: initial report (CAT/C/24/Add.6)	Ms. Gaer	Mr. Yu Mengjia
Bolivia: initial report (CAT/C/52/Add.1)	Mr. Gonzalez Poblete	Mr. Silva Henriques Gaspar
Brazil: initial report (CAT/C/9/Add.16)	Mr. Silva Henriques Gaspar	Mr. Gonzalez Poblete
Costa Rica: initial report CAT/C/24/Add.7	Mr. Gonzalez Poblete	Mr. Rasmussen
Kazakhstan: initial report CAT/C/47/Add.1	Ms. Gaer	Mr. Yakovlev

Annex VII

Views and Decisions of the Committee against Torture

under article 22 of the Convention

A. Views

Communication No. 49/1996

Submitted by:S.V. et al. (name withheld)

[represented by counsel]

Alleged victim:The authors

State party:Canada

Date of communication:15 May 1996

The Committeeagainst Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 15 May 2001,

Having concluded its consideration of communication No. 49/1996, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.The authors of the communication are Mr. S.V., his wife and daughter, citizens of Sri Lanka currently seeking refugee status in Canada. They claim that forcible return to Sri Lanka would constitute a violation of articles 3 and 16 of the Convention against Torture by Canada. They are represented by counsel.

1.2On 12 June 1996 the Committee forwarded the communication to the State party for comments and requested it not to expel the authors while their communication was under consideration by the Committee.

The facts as submitted by the authors

2.1The author is a Tamil from the area of Jaffna in the north of Sri Lanka. He and his wife have two children, an 8-year-old daughter and a 2-year-old son who was born in Canada and is a Canadian citizen. The authors claim that in the period from 1987 until their departure from Sri Lanka in 1992 they, and especially the author, suffered serious persecution from the Indian Peacekeeping Force (IPKF), the Liberation Tigers of Tamil Elam (LTTE), the Sri Lankan Army (SLA) and the Colombo police. The author was arrested on several occasions and, in the course of at least two of them, he was tortured by the army and the police.

2.2The author was a member of the Tamil United Liberation Front (TULF), which advocated the establishment of an autonomous Tamil state in Sri Lanka by peaceful means. In October 1987, a military conflict broke out between LTTE and IPKF. The author and his wife were forced to vacate their home, in Thirunelvely, Jaffna, to escape the bombing. When they returned to their home, they found that it had been occupied by IPKF members. When the author asked them to leave, they refused and accused him of being a member of LTTE.

2.3In May 1988, the author was detained in a camp established on his own property by the Eelam People’s Revolutionary Liberation Front, a militant Tamil group allied to IPKF. He was detained for 10 days, during which he was repeatedly assaulted and questioned about possible connections to LTTE.

2.4In 1990, LTTE took control of the Tamil region. The author’s property was appropriated by LTTE and he himself was threatened at gunpoint when he demanded that they vacate the property. He was then forced to abandon his home permanently and the family moved to Kaithady, Jaffna.

2.5In December 1990, while travelling from Colombo to Jaffna, the author was detained by SLA in Vavuniya. He was questioned, accused of being a member of LTTE and brutally assaulted. Three days later he was beaten again in an attempt to extract a confession. His head was banged repeatedly against a wall until he fell unconscious. The authors claim that, as a result of this incident, the author suffered brain damage that has gravely impaired his ability to speak. Following this incident, the author went to Colombo seeking medical treatment.

2.6In March 1991, after the assassination of the Sri Lankan Deputy Minister of Defence, the police began a round-up of all Tamil males in Colombo. The author, who had been staying with his cousin in Colombo, was arrested by four armed police officers on 4 March 1991. He was interrogated about his presence in Colombo and accused of being an LTTE member. He was repeatedly assaulted by the police with hands and rifle butts and stayed in detention for two days. He was released after the intervention of a lawyer retained by his cousin. His cousin advised the author that he could no longer reside with him as he feared further trouble with the police. The author returned to Jaffna.

2.7On 18 February 1992, LTTE attempted to force the author to join the movement. When he refused, they ordered him to report to their office the next day. Should he fail to report, he was told that he would be considered an enemy of the Tamil people. The author understood this statement as a threat to kill him and fled for Colombo that evening.

2.8On 3 March 1992, the lodge in which he was staying in Colombo was raided by the police and the author, along with other Tamil males, were arrested. He was taken to Wellawatte police station and questioned about his reasons for being in Colombo and his connections with LTTE. He was released the following day on condition that he report weekly to the police and not change his address in Colombo.

2.9Henceforth, the author feared that he could at any time be arrested, interrogated and tortured on suspicion that he was a member of LTTE. He decided that his safety was no longer assured anywhere in Sri Lanka. He left for Canada on 13 March 1992 and arrived the following May. He claimed Convention refugee status on the basis of persecution owing to his race, his political opinions and his membership in a particular social group.

2.10The author’s wife states that she was visited on several occasions in Jaffna by LTTE members looking for her husband. An LTTE member demanded that she pay 200,000 rupees as punishment for her husband’s disobedience, giving her one month in which to come up with the money. As a result she fled with her daughter to Colombo. In Colombo she had to register with the police and her identity card was confiscated. She was accused of being an LTTE supporter. In August 1992, after a police round-up of Tamils, she decided that there was no safe place for herself and her daughter in Sri Lanka and she left for Canada in September 1992. Upon her arrival she claimed refugee status for herself and her daughter.

2.11The Immigration and Refugee Board, after a hearing on 4 March 1993, found that the authors could not be accorded refugee status. First, the extortion activities of LTTE did not constitute persecution but rather harassment not causing undue hardship. Secondly, the authors had in Colombo an internal flight alternative; the Board found that there was no serious possibility of the author being persecuted in Colombo and therefore, it was not unreasonable that he could find refuge in that city.

2.12By decision, dated 7 January 1994, the Federal Court Trial Division dismissed the family’s application for leave to apply for judicial review in which they alleged errors of fact and of law in the Refugee Board’s decision.

2.13On 28 January 1994, the authors applied for a review by Canadian Immigration, under the Post-Determination Refugee Claimant in Canada programme (PDRCC), of the decision not to grant the authors refugee status. The purpose of PDRCC review is to identify individuals who, although determined not to be Convention refugees, face an objectively identifiable risk to life or inhumane treatment should they be returned to their country of origin.

2.14The authors’ application for PDRCC review was rejected on 9 November 1995. It was the view of the PDRCC officer that, although there were strong grounds for the authors’ fearing to return to the north of Sri Lanka, an internal flight alternative existed in Colombo. He noted in particular that the assault by SLA which caused the author’s medical problems had occurred near Jaffna. The arrests by the Colombo police were part of a pattern of general harassment of Tamils by the police which he felt did not constitute an “objectively identifiable risk”, given that most detainees were released within three days though some had been required to pay bribes to obtain their release. He also indicated that part of the authors’ extended family lived in Colombo and could facilitate their successful settlement in the city. In addition, the medical report indicating that the author suffered post-traumatic stress disorder which might be aggravated if he were to return to Sri Lanka had only been made on the basis of one visit to a doctor rather than in the context of ongoing treatment and was not specific concerning the conditions that could trigger recurrence of the trauma.

2.15The authors made a further appeal on 13 May 1995 to the Minister of Immigration based on the Humanitarian and Compassionate Grounds procedure under section 114 (2) of the Immigration Act. On 9 December 1996 a negative decision was issued. An application for leave to apply for judicial review against that decision was dismissed by the Federal Court on 11 April 1997.

The complaint

3.1The authors fear persecution and ill-treatment from the authorities in Sri Lanka given their past experiences and their absence from the country since 1992. They submit that in repatriating them Canada would violate article 3 of the Convention against Torture.

3.2The authors provide medical evidence that the mental and physical injuries suffered by the author while in detention have had drastic long-term effects. He has difficulties in speaking and moving his neck and suffers symptoms of post-traumatic stress disorder (psychiatric medical reports are provided). They submit that, given these afflictions, the author would be particularly vulnerable to mistreatment and, further, would not receive the medical care he needs in Sri Lanka.

3.3The authors further explain that their daughter, Nitarsha, is physically and mentally handicapped, suffering from cerebral palsy, right hemiparesis and an active seizure disorder. She requires special care, treatment and education. She would not receive those in Sri Lanka.

3.4The authors submit that, given these medical conditions, the deportation of the family would amount to inhuman and degrading treatment on the part of the Canadian authorities in violation of article 16 of the Convention against Torture.

Observations by the State party on admissibility

4.1By a note dated 9 June 1997 the State party contested the admissibility of the communication. It indicated that the authors did not seek judicial review of the decision of PDRCC and that this remedy might still be available if time for filing were extended by the Court. Moreover, if the authors were to succeed in an application for leave to apply for judicial review, the decision of the Federal Court Trial Division on the judicial review application could be further appealed to the Federal Court of Appeal, should the judge of the Trial Division certify that the case raises a serious question of general importance. Moreover, a decision of the Federal Court of Appeal could be appealed, with leave, to the Supreme Court of Canada.

4.2On judicial review, the authors would be entitled to raise arguments under the Canadian Charter of Rights and Freedoms. In this regard, it is relevant to note that in the context of extradition the Supreme Court of Canada has held that section 7 of the Charter is violated by returning someone to a country in circumstances that would “shock the conscience of Canadians”.

Counsel’s comments on admissibility

5.1In his reply, dated 28 April 1998, counsel indicated that the authors had applied for judicial review of the decision adopted by the Immigration and Refugee Board. However, leave to be heard on this question was refused by the Federal Court. There is no possibility of appealing that decision. It is the final step in the refugee determination procedure in which there is a judicial or quasi-judicial process that looks into the substance of the matter; all subsequent judicial controls look only into the procedures.

5.2The post-determination review in November 1995 was negative. This procedure has been criticised by refugees, lawyers and church groups because it never results in a positive decision.

5.3The only unresolved issue that is addressed by the State party is whether the refusal of PDRCC should have occasioned a request for judicial review by the Federal Court and whether this recourse can still be resorted to. Counsel pointed out that judicial review of the PDRCC procedure was not sought because of the lack of financial resources of the applicants and the futility of it. The jurisprudence of the Federal Court clearly establishes that the decision of the post-determination claims officer is an entirely discretionary decision and that the Court is only concerned with the procedural issues.

5.4Instead of a request for judicial review, an appeal on humanitarian grounds covering the same questions in law was made. The issue of the post-traumatic stress was fully presented, as was the danger of return. The torture was fully documented and the immigration officer judged the story to be credible but refused to grant asylum because of the internal flight alternative.

5.5The refusal of the appeal on humanitarian grounds was challenged in the Federal Court and leave was denied. According to the Court’s constant jurisprudence, decisions like the one under review are discretionary and, therefore, the Court does not intervene on the substance of the cases, only on whether the procedures have been fair. All legal arguments were considered and disposed of by the Federal Court.

5.6Counsel stated that it is objectively impossible to ask the Federal Court to litigate again on exactly the same questions. The Court would clearly consider that an abuse of the process.

5.7The Canadian authorities concluded that the authors were at risk in the Jaffna peninsula, but that Colombo could be a safe haven for them. Counsel noted, however, that the author was severely mistreated by the police in Colombo in March 1991, that he was arrested arbitrarily in March 1992 and that there is a consistent pattern of arbitrary arrests, detention, and sometimes disappearances and extra-judicial executions of Tamils in Colombo.

5.8The conclusion of the immigration officer in the humanitarian and compassionate review procedure was that risks were involved. He based his conclusion on the report of one of the doctors who examined the author according to which the latter suffers from post-traumatic stress disorder and his symptoms have increased as he is worried about being returned to Sri Lanka. In the doctor’s opinion, the author would have great difficulty functioning in that country because of his neurological difficulties. In spite of this, application was refused on the grounds of “medical inadmissibility” that the authors had not shown that they had established themselves economically in Canada. The family has been living on social assistance since their arrival in Canada and, given their circumstances, they might become a chronic welfare case.

5.9In the medical report referred to by the immigration officer the doctor also indicates that some Tamil refugees he had examined stated that they were at greater risk in Sri Lanka if they had scars or signs of injury, as these could be regarded by the authorities as an indication that their injuries occurred while fighting with LTTE. The author’s neurological limitations could be regarded as having been caused in this manner. If he were questioned by the authorities in Sri Lanka he would not be able to express himself verbally and someone who was unaware of his neurological limitations could regard this as being obstructive or antagonistic.

5.10Counsel argued that neither the Government of Canada nor the Office of the United Nations High Commissioner for Refugees (UNHCR) evaluated the objective risk for the individuals in this particular case but only considered the question of deportations to Sri Lanka in general.

5.11Counsel contended that returning a person who suffers from serious physical and mental damage as a result of human rights abuses to the country where he was subjected to those abuses constitutes inhuman treatment. The lack of medical care or proper psychiatric assistance in Sri Lanka could per se constitute a violation of article 16 of the Convention. Counsel, however, raised this as a circumstance aggravating the inhuman treatment involved in the deportation.

Committee’s decision on admissibility

6.1At its twentieth session, the Committee considered the admissibility of the communication. The Committee was of the opinion that once the Humanitarian and Compassionate Grounds procedure, including a leave application addressed to the Federal Court, was completed, all available domestic remedies had been exhausted. Accordingly, article 22, paragraph 5 (b), did not prevent it from considering the communication. The Committee considered that there was no other obstacle to the admissibility of the communication. It therefore decided that the communication was admissible.

Observations of the State party on the merits of the communication

7.1According to the State party, the facts as presented by the authors were examined by a competent and independent domestic tribunal following a fair process, in accordance with Canada’s refugee determination procedure. The State party also notes that the authors were represented by counsel during the course of the proceedings, interpretation was provided and the author’s viva voce testimony was elicited.

7.2It was the view of the Refugee Board that the central issue with respect to the author’s situation is that he was released by the police. This clearly indicates that the author was not considered an LTTE member or sympathizer by the very authorities he fears. The Board stated in its reasons that it considered the authors’ allegations concerning the beatings received at the hands of the Sri Lankan army and the medical reports he filed with the Board. However, the

Board noted that the definition of “Convention refugee” is forward-looking and past experiences, though relevant, are not determinative in the assessment. It states that this is also true of article 3 of the Convention against Torture.

7.3Regarding the author’s wife and child, the Board determined that they were not Convention refugees as they did not have problems when they were in Colombo. Furthermore, as their claims were joined with and dependent upon the author’s claim, the Board determined that they were not Convention refugees.

7.4With respect to the authors’ application to PDRCC, the State party explains that, in most cases, the Convention refugee definition will overlap with article 3 of the Convention against Torture. In circumstances where there is no overlap, officials conducting the post-determination review must give consideration to article 3 of the Convention. In accordance with the criteria for these reviews, the post-determination officer reviewed the authors’ written submissions prepared on their behalf by their lawyer, the documentation they attached and documentation on the situation in Sri Lanka. The submissions included evidence not produced at the time of the hearing before the Refugee Board, notably a medical report and a 1994 report by Amnesty International.

7.5Regarding the humanitarian and compassionate review of the case under section 114 (2) of the Immigration Act, the State party contends that the reviewing officer took into account all the submissions of the applicants and a wide range of circumstances, including the risk of unduly harsh or inhumane treatment in the country of return, current conditions in the country and new developments in Sri Lanka since the hearing before the Refugee Board and the PDRCC review. The immigration officer indicated that “risks were involved” but did not confirm that torture was one of them. The risk assessment is not limited to the risk of torture.

7.6According to the State party, the above-mentioned national proceedings demonstrate no manifest error or unreasonableness and were not tainted by abuses of process, bad faith, manifest bias or serious irregularities. It also states that it is not for the Committee to evaluate the facts and evidence of a particular case.

7.7In the State party’s view, the communication reveals that the authors of the communication left their country because they feared LTTE or because they feared being caught between LTTE and the governmental authorities. Such fear does not suffice to substantiate a communication under the Convention. The authors also state in their submission - and this is confirmed in the medical report - that they feared torture at the hands of LTTE if they are returned to Sri Lanka. The author himself claimed that it was the order to join LTTE that prompted him to leave for Colombo in 1992. Consequently, the State party argues that, in the north of the country, the authors do not fear the Sri Lankan authorities but LTTE.

7.8The State party submits that acts committed by LTTE do not fall under the competence of the Committee since the definition of “torture” in the Convention refers expressly to acts committed “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. Acts committed by LTTE cannot be attributed to the State and therefore are not covered by the Convention.

7.9As to the alleged risk of torture at the hands of the State, the State party submits that the authors of the communication have not established substantial grounds to believe that, if the authors were deported to Sri Lanka, there is a personal, present or foreseeable risk of torture. It states that the authorities are not interested in the authors and makes the following points in this regard:

Although the author claimed, before the Refugee Board, to be an ardent supporter of TULF, he never indicated that he was a member of this movement or had been involved in political activities. In any event, TULF is now represented in Parliament and supports peace initiatives taken by the Government;

In his refugee application, the author claimed that he chose Canada because he was unable to go anywhere else. However, his Personal History Form, completed by him on his arrival into Canada, shows that he travelled to many different countries and for long periods, returning voluntarily to his country each time, even after the incidents in which he alleges that he had problems with the authorities. In particular, almost one year after his alleged torture by the army in December 1990, the author left his country for Singapore and returned voluntarily to Sri Lanka;

The author travelled many times to Colombo and had no problems with the authorities except in March 1991 and March 1992. This establishes that the author is not suspected of complicity with LTTE;

While the author claimed that he was tortured by the authorities when arrested in December 1990, March 1991 and March 1992 he has not provided any evidence to indicate that any pain suffered in March 1991 amounted to torture as defined by the Convention. Also, when last arrested in 1992, the event which is alleged to have prompted him to leave the country, the author was not beaten and was released the next day with the only obligation being to report to the authorities once a week;

As to the author’s physical condition, his wife stated that, apart from a longer period of questioning because of his speech difficulties, her husband had no other problem with the police when he was in Colombo. The author himself stated that the police were able to understand him when he spoke with them;

As to the argument that the author would face torture because of his speech difficulties, the State party argues that this is mere conjecture and is based on the medical report which states that “(s)ome Tamil refugees, whom I have examined, have indicated that they believe that they are at risk in Sri Lanka if they have scars or signs of injury as these could be regarded by the authorities as an indication that their injuries had occurred while fighting with the LTTE”. Such beliefs cannot constitute substantial grounds required by article 3 of the Convention;

The author’s wife has not herself been arrested by the authorities and she had no problem with the police in Sri Lanka. Therefore, there is a total lack of evidence that she was accused or suspected of being an LTTE supporter;

Contrary to the author’s wife’s claim, there is no evidence that her identity card was taken away by the Sri Lanka authorities. In any event, she was not arrested, detained, accused or asked to make any subsequent reports to the police;

In 1991, the author, and in 1992, his wife, legally obtained passports in Sri Lanka;

The authors have not claimed that persons in their immediate circle, notably family members, were arrested or tortured.

7.10The State party refers to decisions of the Committee where the authors have failed to show that the danger is personal and present. The State party also refers to a case decided by the European Court of Human Rights involving the removal of Sri Lankans. In that case the allegation of a violation of article 3 of the European Convention on Human Rights was dismissed as the plaintiffs did not establish that their personal position was any worse than that of other members of the Tamil community who were returning to their country. The mere possibility of ill-treatment was not in itself sufficient to foresee that they would be subjected to ill-treatment following their return.

7.11The State party submits that the communication rests mainly on the general situation of human rights in Sri Lanka. The authors do not link that general situation to their personal situation. As to the general situation in Sri Lanka, the report of the Working Group on Enforced or Involuntary Disappearances (1998) indicates that persons most often reported detained and missing were young Tamil men accused or suspected of belonging to, collaborating with, aiding or sympathizing with LTTE. The State party argues that the authors do not fall into this category.

7.12Furthermore, it states that the information provided by UNHCR indicates that torture and other forms of mistreatment are not practised by the police and security authorities in Colombo. The United States Department of State Country Report for 1998 (dated February 1999) indicates that there were no reports of disappearances in Colombo and Jaffna. In March 1997, UNHCR reported that rejected asylum-seekers who arrived with national travel documents should have no problems when arriving at Colombo airport.

7.13Moreover, the State party argues that in its assessment of the communication, the Committee should take into consideration the different measures taken by the Sri Lankan authorities to investigate and prevent acts of torture, as well as remedies available to the authors. In this context, the State party notes that, inter alia, all arrests and detentions must be reported to the Human Rights Commission (established in 1997) within 48 hours, the reports of three presidential commissions of inquiry into past disappearances have been made public, investigations into 485 of the 3,861 cases of alleged human rights violations have been completed and 150 alleged perpetrators charged in the High Court, and a 24-hour service to deal with public complaints of instances of harassment by elements in the security forces has been established by the Government.

7.14With respect to the alleged violation of article 16 of the Convention, the State party argues that this article obliges States parties to apply the obligations contained in articles 10 to 13 to acts of cruel, inhuman or degrading treatment or punishment. As article 16 does not mention article 3, it does not create an obligation not to remove someone from a State in the circumstances described in that article.

7.15The State party is of the view that should article 16 of the Convention be found to apply where it is alleged that removal per se constitutes cruel, inhuman or degrading treatment or punishment, it should do so only in very exceptional circumstances. It is submitted that the aggravation of the author’s state of health possibly caused by his deportation would not amount to the type of cruel, inhuman or degrading treatment envisaged by article 16 of the Convention and attributable to the State party; reference is made in this regard to the Committee’s decision in G.R.B. v. Sweden. Furthermore, article 16 of the Convention obliges States to prevent the proscribed treatment; it does not create a positive duty to provide medical care should the authors allegedly not receive comparable medical care in their home country. Further, it is submitted that there is no evidence that the required medical care in Sri Lanka is inadequate. Finally, article 16, paragraph 2, indicates that the provisions of the Convention are without prejudice to the provisions of national law which relate to expulsion.

Counsel’s comments on the merits

8.1Counsel contests the State party’s assertion that this case was examined by “a competent and independent domestic tribunal”. He claims that the Immigration and Refugee Board failed to appreciate both the facts of the case and the applicable law.

8.2Counsel states that the most recent evidence available from Sri Lanka shows a situation of terrible human rights abuses in line with those described in article 3, paragraph 2, of the Convention against Torture. There have been several suicide bomb attacks in Colombo and other areas of the country. There has also been a major LTTE offensive in the north. There are reports of large-scale round-ups of Tamils in the centre and the capital of the country, as well as a serious resurgence of forced disappearances.

8.3Counsel refers to the Committee’s general comment on article 3 of the Convention against Torture and argues that article 3 applies to the author’s case as follows.

(a)There is a situation in Sri Lanka of a “consistent pattern of gross, flagrant or mass violations of human rights”. The existence of torture with impunity, on a massive and systematic scale, is clear from any reading of the situation;

(b)The author has been mistreated in the past by agents of the Sri Lankan State. He has brain damage because of severe mistreatment by soldiers of the Sri Lankan army. He has been detained on more than one occasion in Colombo and mistreated by the police. This happened shortly before he left Colombo;

(c)There is independent medical and psychiatric evidence from doctors and psychiatrists associated with the Canadian Centre for Victims of Torture that establishes clearly that he is a torture victim. The torture has had a long-lasting effect on the author and his family;

(d)There is no substantive change in the situation in Sri Lanka since the author left the country. The situation at the time of counsel’s submission is said to have been very serious and dangerous. A high level of repression and the legal arsenal that permits almost total impunity are firmly in place;

(e)The author was a supporter of the main Tamil party, TULF. He is from the north and he has suffered torture in the past. His situation as a torture victim in the past puts him greatly at risk today;

(f)The author is highly credible, with strong support from serious organizations in Canada. The original decision did not find against him on the issue of credibility;

(g)There is nothing incoherent or implausible about what the author says. His personal security and his life are at risk in Sri Lanka today.

8.4Counsel also contests the assertion that the authors’ main fear is of the Tamil Tigers. Counsel contends that the jurisprudence cited by the Canadian authorities appears to relate to cases that were not substantiated or where the author in question was not previously subjected to torture or directly targeted.

8.5Counsel states that it is untrue to say that there is no longer torture in Colombo. All of the international human rights reports that are available state the contrary. Even the Federal Court of Canada recognized, in its decision granting the stay, that there is a risk of irreparable harm for the author if he were sent back, as did the immigration agent examining his case.

Issues and proceedings before the Committee

9.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22, paragraph 4, of the Convention.

9.2The issue before the Committee is whether or not the forced return of the authors to Sri Lanka would violate the obligation of Canada under article 3 of the Convention not to expel a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

9.3In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individuals concerned would be personally at risk of being subjected to torture in the country to which he or she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.

9.4The Committee recalls its general comment on the implementation of article 3, which reads:

“Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

9.5The Committee recalls that the State party’s obligation to refrain from forcibly returning 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 is directly linked to the definition of torture as found in article 1 of the Convention. For the purposes of the Convention, according to article 1, “the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. The Committee considers that the issue of whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non‑governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention. Consequently, the issue, on which the authors base part of their claim that they would suffer torture by LTTE or other non-governmental entities on return to Sri Lanka, cannot be considered by the Committee.

9.6With respect to the possibility of the author suffering torture at the hands of the State on return to Sri Lanka, the Committee notes the author’s allegations that he was tortured by the Sri Lankan army in December 1990 and that this treatment, which left him disabled, amounted to torture in terms of article 3 of the Convention. It also notes the allegations that he was maltreated by the police in Colombo in 1991. However, the Committee also notes the State party’s contention, unchallenged by the author, that he left Sri Lanka regularly and always returned, even after the incident in December 1990. The Committee notes that with respect to the incident in March 1992, which according to the author was the reason for his departure, he was not maltreated and was released by the authorities. Furthermore, the author has not indicated that since that period he has been sought by the authorities. In fact, the author has not alleged to have been engaged in political or other activity within or outside the State, or alleged any other circumstance which would appear to make him particularly vulnerable to the risk of being placed in danger of torture. For the above-mentioned reasons, the Committee finds that the author has not provided substantial grounds for believing that he would be in danger of being tortured were he to be returned to Sri Lanka and that such danger is personal and present.

9.7Similarly, the author’s wife and their daughter have never been arrested or subjected to torture. The obligation to register at the police station at Colombo and the allegation, challenged by the State party, that the police took her identity card are not substantial grounds for believing that they would be in danger of being subjected to torture were they to be returned to Sri Lanka and that such danger is personal and present.

9.8The Committee recalls that, for the purposes of article 3 of the Convention, the individual concerned must face a foreseeable, real and personal risk of being tortured in the country to which he or she is returned. In light of the foregoing, the Committee deems that such a risk has not been established by the authors. Moreover, the Committee observes that article 3 applies only to situations of torture as defined in article 1 of the Convention.

9.9With regard to the authors’ allegation that the decision to expel them would in itself constitute an act of cruel, inhuman or degrading treatment or punishment in contravention of article 16 of the Convention, the Committee notes that the authors have not submitted sufficient evidence in substantiation of this claim.

10.The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the authors’ removal to Sri Lanka by the State party would not constitute a breach of article 3 or article 16 of the Convention.

Notes

Communication No. 113/1998

Submitted by:Radivoje Ristic

[represented by counsel]

Alleged victim:Milan Ristic (deceased)

State party:Yugoslavia

Date of communication:22 July 1998

The Committeeagainst Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 11 May 2001,

Having concluded its consideration of communication No. 113/1998, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.The author of the communication, dated 22 July 1998, is Mr. Radivoje Ristic, a citizen of Yugoslavia, currently residing in Šabac, Yugoslavia. He claims that an act of torture resulting in the death of his son, Milan Ristic, was committed by the police and that the authorities have failed to carry out a prompt and impartial investigation. The communication was transmitted to the Committee, on behalf of Mr. Ristic, by the Humanitarian Law Center, a non-governmental organization based in Belgrade.

The facts as submitted by the author

2.1The author alleges that on 13 February 1995 three policemen (Dragan Riznic, Uglješa Ivanovic and Dragan Novakovic) arrested Milan Ristic in Šabac while looking for a murder suspect. One of the officers struck his son with a blunt object, presumably a pistol or rifle butt, behind the left ear, killing him instantly. The officers moved the body and, with a blunt instrument, broke both thighbones. It was only then that they called an ambulance and the on-duty police investigation team, which included a forensic technician.

2.2The policemen told the investigators that Milan Ristic had committed suicide by jumping from the roof of a nearby building and that they had an eyewitness to that effect (Dragan Markovic). The medical doctor who came with the ambulance pronounced Milan Ristic dead. The ambulance then left, leaving the body to be collected by a mortuary van. The author claims that after the departure of the ambulance the policemen struck the deceased on the chin, causing injury to his face.

2.3The author provides a copy of the autopsy report, which concluded that the death was violent and caused by an injury to the brain as a result of a fall on a hard surface. The fall also explained the fractures described in the report. The author also provides a copy of the report by the doctor who came with the ambulance. That report says: “By exterior examination I found weak bleeding from the injury behind the left ear. Through the trousers above the right knee an open fracture of thighbone could be seen with small blood signs; around the wound there were no traces of blood.”

2.4The author contends that the medical reports do not fully tally with each other. The ambulance doctor explicitly states that he noticed no injuries on the face while the autopsy report lists a laceration and bruise on the chin. He challenges the reports, noting that it is hardly possible that a person could fall from a height of 14.65 metres without suffering any injury to the face, heels, pelvis, spine or internal organs and without internal haemorrhaging, leaving only bruises on the left elbow and behind the left ear. Moreover, he notes that there was no blood on the ground.

2.5At the request of the parents, two forensic experts examined the autopsy report and found it superficial and contradictory, especially in the part referring to the cause of death. According to their report, the autopsy was not performed in accordance with the principles of forensic and medical science and practice and the conclusion is not in agreement with the findings. They proposed the exhumation of the remains and another autopsy by a forensic expert. The author further states that on 16 May 1995 they spoke with the pathologist who had performed the autopsy and visited the alleged scene of the incident. They noted that the autopsy report and the scene had nothing in common, which suggested that the body had been moved. In a written statement dated 18 July 1995 addressed to the Public Attorney’s Office, the pathologist agreed that the remains should be exhumed for forensic examination and pointed out that, as he was not a specialist in forensic medicine, he might have made a mistake or missed some details.

2.6The parents of the victim filed criminal charges against a number of police officers before the Public Prosecutor in Šabac. On 19 February 1996, the Public Prosecutor dismissed the charges. Under Yugoslav law, following dismissal of a criminal complaint, the victim or the person acting on his behalf may either request the institution of investigative proceedings or file an indictment and proceed directly to trial. In the present case, the parents presented their own indictment on 25 February 1996.

2.7The investigating judge questioned the policemen allegedly involved as well as witnesses and found no grounds for believing that the alleged criminal offence had been committed. The Criminal Bench of the Šabac District Court endorsed the investigating judge’s decision. The Court did not find it necessary to hear the testimony of the two forensic experts and did not consider the possibility of ordering an exhumation and a new autopsy. Besides, the investigating judge delivered to the parents an unsigned statement which the pathologist allegedly made in court when they were not present and which contradicts the one he had made in writing on 18 July 1995. The author further explains that, in addition to the medical contradictions, there were many other conflicting facts that the judicial investigation failed to clarify.

2.8The parents appealed the decision of the District Court to the Serbian Supreme Court, which on 29 October 1996 dismissed the appeal as unfounded. According to the ruling, the testimony of Dragan Markovic showed without any doubt that Milan Ristic was alive at the time when police officers Sinisa Isailovic and Zoran Jeftic appeared in front of the building in which Mr. Markovic lived. They were responding to a telephone call from a person named Zoran Markovic who had noticed a man at the edge of the terrace from whose behaviour it could be concluded that he was about to commit suicide. Dragan Markovic and the two policemen actually saw Milan Ristic jump from the terrace. There was nothing they could do to stop him.

2.9The parents again tried to bring the case before the judiciary, but on 10 February 1997 the Šabac District Court ruled that prosecution was no longer possible in view of the decision of the Supreme Court of Serbia. On 18 March 1997, the Supreme Court dismissed their further appeal and confirmed the District Court’s ruling.

The complaint

3.1The author considers that first the police and, subsequently, the judicial authorities failed to ensure a prompt and impartial investigation. All domestic remedies were exhausted without the court ever having ordered or formally instituted proper investigative proceedings. The preliminary investigation by the investigating judge, which consisted of questioning of the accused and some witnesses, did not produce sufficient information to clarify the circumstances of the death and the court never ordered a forensic examination. The court did not order either the hearing of other witnesses, such as the employees of the funeral home, whose testimony could have been relevant to establish the chronology of events. The author further contends that the investigation was not carried out in accordance with the provisions of the Criminal Procedure Code. For instance, the police failed to inform the investigating judge immediately of the incident, although obliged to do so by article 154. The entire on-site investigation was therefore conducted by the police without the presence of a judge. The author further contends that every action aimed at clarifying the incident was initiated by the parents of Milan Ristic and that the competent government bodies failed to take any effective steps to that end.

3.2On the basis of the above, the author claims that the State party has violated several articles of the Convention, in particular articles 12, 13 and 14. He states that although the parents had the possibility of seeking compensation, the prospect of their being awarded damages was de facto non-existent in the absence of a criminal court judgement.

Observations by the State party

4.On 26 October 1998 the State party informed the Committee that, although all domestic remedies had been exhausted, the communication does not fulfil other necessary conditions provided for by the Convention. It stated, in particular, that no act of torture had been committed, since the deceased did not have any contact at all with State authorities - the police. Accordingly, the communication was not admissible.

The Committee’s decision on admissibility

6.At its twenty-second session, in April-May 1999, the Committee considered the question of the admissibility of the communication and ascertained that the same matter had not been and was not being examined under another procedure of international investigation or settlement. The Committee noted the State party’s statement that all domestic remedies had been exhausted, and considered that the communication was not an abuse of the right of submission or incompatible with the provisions of the Convention. The Committee therefore decided, on 30 April 1999, that the communication was admissible.

The State party’s observations on the merits

7.1In a submission dated 15 December 1999, the State party gave to the Committee its observations on the merits of the communication.

7.2The State party reiterates its opinion that the alleged victim was not subjected to torture because he had at no time been in contact with the law enforcement officers, i.e. the police officers. It therefore considers that there is no violation of the Convention whatsoever.

7.3The State party also underlines that the courts of its country operate independently and have concluded rightfully and in accordance with the law that no investigation should be initiated against the alleged authors of the acts of torture. It points in this regard to the fact that the author of the communication has not submitted all the court decisions and other judicial documents that may bring some additional light to the Committee’s consideration of the communication. The said documents were submitted to that effect by the State party.

7.4The State party then gave its version of the facts. First, it alleges that the alleged victim took alcohol and drugs (Bromazepan) and had already tried to commit suicide some time before. During the afternoon preceding his death, on 12 February 1995, the alleged victim had taken some drugs (in the form of pills) and was in a very bad mood because of an argument he had had with his mother. These elements were, according to the State party, confirmed by four of his friends who spent the afternoon of 12 February 1995 with the alleged victim. The State party also notes that the parents and girlfriend of the alleged victim stated exactly the contrary.

7.5With respect to the events surrounding the death of the alleged victim, the State party refers to the statement made by the eyewitness, Dragan Markovic, who explained that he had seen the victim standing on the edge of the terrace, 15 metres from the ground and immediately called the police. When the police arrived, the victim jumped from the terrace and neither Dragan Markovic nor the police could prevent it. The State party notes also that the three policemen who are accused of the alleged murder of the victim arrived on the premises after the victim had jumped and therefore concludes that none of them could have taken any action.

7.6The above elements demonstrate, according to the State party, that the death of the alleged victim was the result of a suicide and that no acts of torture had therefore been committed.

7.7Moreover, the State party notes that the impartiality of witness Dragan Markovic, as well as of S. Isailovic and Z. Jetvic, the two police officers who arrived first on the scene, is indisputable and confirmed by the fact that the request for an investigation filed by the author of the communication was directed not against these persons but others.

7.8Concerning the judicial proceedings that followed the death of the victim, the State party recalls the various steps of the procedure and notes that the main reason that an investigation had not been ordered was the lack of strong evidence to prove a causal link between the behaviour of the three defendant police officers and the death of the victim. The State party contends that the procedure has been scrupulously respected at all steps and that the complaint has been carefully considered by all the magistrates who have had to deal with the case.

7.9Finally, the State party emphasizes that certain omissions that may have occurred during the events immediately following the death of the alleged victim and that have been referred to by the author of the communication were not important because they do not prove that the alleged victim died as a result of torture.

Comments submitted by the author on the merits

8.1In a submission dated 4 January 1999, the author refers to relevant jurisprudence of the European Court of Human Rights. In a further submission dated 19 April 2000, the author confirmed the assertions he had made in his communication and gave to the Committee additional observations on the merits of the communication.

8.2The author first makes some remarks on specific issues raised or ignored by the State party in its observations. In this regard, the author mainly points to the fact that the State party limited itself to arguing that the three police officers allegedly responsible for the murder were not involved in the death of the alleged victim and fails to address the main issue of the communication, which is the failure to carry out a prompt, impartial and comprehensive investigation.

8.3The author focuses on the following factual elements supporting his claim:

(a)The inspector in charge of the case took three months to collect the information needed for the investigation;

(b)The District Court was only requested to initiate an investigation seven months after the death of the alleged victim;

(c)The District Court failed to take as a starting point for establishing the relevant facts the police report that had been made at the time of the death;

(d)The eyewitness Dragan Markovic did mention in his only statement the presence at the scene of police officers Z. Jeftic and S. Isailovic and not the presence of the three defendant police officers;

(e)The Šabac Police Department failed to provide the photographs taken at the scene of the incident, as a result of which the investigating judge transmitted incomplete documentation to the public prosecutor;

(f)When the parents of the alleged victim proceeded in the capacity of private prosecutor, the investigating judge failed to order the exhumation of the body of the alleged victim and a new autopsy, at the same time agreeing that the original autopsy “had not been performed in line with all the rules of forensic medicine”;

(g)Yugoslav prosecuting authorities failed to hear numerous other witnesses proposed by the author.

8.4Regarding the State party’s contention that the alleged victim had previously attempted to commit suicide, the author indicates that the State party does not substantiate its claim with medical records or police reports, which are usually available in such cases. With regard to other rumours concerning the alleged victim, inter alia that he was addicted to drugs, the author notes that they have always been denied by the family. The author does not know when or whether the four friends of his son were interrogated and neither he nor his lawyer was ever notified of such an interrogation. Moreover, the author notes that three of these witnesses may have been subjected to pressure and influenced for various reasons.

8.5Concerning the obligation to investigate incidents of torture and cruel, inhuman or degrading treatment or punishment, the author refers to the jurisprudence of the Committee in the case Encarnación Blanco Abad v. Spain (CAT/C/20/D/59/1996), where the Committee observed that “under article 12 of the Convention, the authorities have the obligation to proceed to an investigation ex officio, wherever there are reasonable grounds to believe that acts of torture or ill-treatment have been committed and whatever the origin of the suspicion”. He also refers to the decision in the case Henri Unai Parot v. Spain (CAT/C/14/D/6/1990), according to which the obligation of a prompt and impartial investigation exists even when torture has merely been alleged by the victim, without the existence of a formal complaint. The same jurisprudence is confirmed by the European Court of Human Rights (Assenov and Others v. Bulgaria (90/1997/874/1086)).

8.6Concerning the principle of prompt investigation of incidents of alleged torture or other ill-treatment, the author refers to the Committee’s jurisprudence stating that a delay of 15 months before the initiation of an investigation is unreasonable and contrary to article 12 of the Convention (Qani Halimi-Nedzibi v. Austria, CAT/C/11/D/8/1991).

8.7Concerning the principle of the impartiality of the judicial authorities, the author states that a body cannot be impartial if it is not sufficiently independent. He refers to the case-law of the European Court of Human Rights to define both the impartiality and the independence of a judicial body in accordance with article 6 (1) and 13 of the European Convention on Human Rights and underlines that the authority capable of providing a remedy should be “sufficiently independent” from the alleged responsible author of the violation.

8.8Concerning the existence of reasonable grounds to believe that an act of torture or other ill-treatment has been committed, the author, again relying on the jurisprudence of the European Court of Human Rights, points to “the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence”.

8.9Concerning the principle of compensation and rehabilitation for an act of torture or other ill-treatment, the author mentions that an effective remedy entails also the payment of compensation.

8.10The author stresses that, at the time of his submission, five years had already elapsed since his son’s death. He contends that, notwithstanding strong indication that grave police brutality had caused the death of Milan Ristic, the Yugoslav authorities have failed to conduct a prompt, impartial and comprehensive investigation able to lead to the identification and punishment of those responsible, and have thus failed to provide the author with any redress.

8.11Relying on a significant amount of sources, the author explains that police brutality in Yugoslavia is systematic and considers that public prosecutors are not independent and rarely institute criminal proceedings against police officers accused of violence and/or misconduct towards citizens. In such cases, the action is very often limited to a request for information directed to the police authorities alone and the use of dilatory tactics is common.

8.12Finally, the author specifically refers to the most recent examination of the periodic report submitted by Yugoslavia to the Committee and the latter’s subsequent concluding observations, in which it stated that it was “extremely concerned over the numerous accounts of the use of torture by the State police forces that it has received from non-governmental organizations” (A/54/44, para. 46) and “gravely concerned over the lack of sufficient investigation, prosecution and punishment by the competent authorities … of suspected torturers or those breaching article 16 of the Convention, as well as with the insufficient reaction to the complaints of such abused persons, resulting in the de facto impunity of the perpetrators of acts of torture” (ibid., para. 47).

Issues and proceedings before the Committee

9.1The Committee has considered the communication in the light of all information made available to it by the parties concerned, in accordance with article 22, paragraph 4, of the Convention. It regrets in this regard that the State party has only provided the Committee with a different account of the event, and notes that more precise information concerning the conduct of the investigation was necessary, including an explanation of why a new autopsy was not carried out.

9.2It also notes that the author of the communication claims that the State party has violated articles 2, 12, 13, 14 and 16 of the Convention.

9.3With regard to articles 2 and 16, the Committee first considers that it does not fall under its mandate to assess the guilt of persons who have allegedly committed acts of torture or police brutality. Its competence is limited to considering whether the State party has failed to comply with any of the provisions of the Convention. In the present case, the Committee will therefore not pronounce itself on the existence of torture or ill-treatment.

9.4With regard to articles 12 and 13 of the Convention, the Committee notes the following elements, on which both parties have been able to submit observations:

(a)There are apparent differences and inconsistencies between the statement made on 18 August 1995 by the doctor who came with the ambulance as to the premise of the cause of death of the alleged victim, the autopsy report of 13 February 1995 and the report made on 20 March 1995 by two forensic experts at the request of the parents of the alleged victim;

(b)Although the investigating judge in charge of the case when the parents of the alleged victim proceeded in the capacity of private prosecutor stated that the autopsy “had not been performed in line with all the rules of forensic medicine”, there was no order of exhumation of the body for a new forensic examination;

(c)There is a difference between the statement made on 13 February 1995 by one of the three police officers allegedly responsible for the death of the alleged victim according to which the Police Department had been called for a person who had committed suicide and the statements made by another of the above-mentioned police officers, as well as by two other police officers and the witness D. Markovic, according to which the Police Department had been called for a person who might jump from the roof of a building;

(d)The police did not immediately inform the investigating judge on duty of the incident in order for him to oversee the on-site investigation in compliance with article 154 of the Code of Criminal Procedure of the State party.

9.5Moreover, the Committee is especially concerned by the fact that the doctor who carried out the autopsy admitted in a statement dated 18 July 1995 that he was not a specialist in forensic medicine.

9.6Noting the above elements, the Committee considers that the investigation that was conducted by the State party’s authorities was neither effective nor thorough. A proper investigation would indeed have entailed an exhumation and a new autopsy, which would in turn have allowed the cause of death to be medically established with a satisfactory degree of certainty.

9.7Moreover, the Committee notes that six years have elapsed since the incident took place. The State party has had ample time to conduct a proper investigation.

9.8In the circumstances, the Committee finds that the State party has violated its obligations under articles 12 and 13 of the Convention to investigate promptly and effectively allegations of torture or severe police brutality.

9.9With regard to allegations of a violation of article 14, the Committee finds that in the absence of proper criminal investigation, it is not possible to determine whether the rights to compensation of the alleged victim or his family have been violated. Such an assessment can only be made after the conclusion of proper investigations. The Committee therefore urges the State party to carry out such investigations without delay.

10.In pursuance of rule 111, paragraph 5, of its rules of procedure, the Committee urges the State party to provide the author of the communication with an appropriate remedy, and to inform it, within 90 days from the date of the transmittal of this decision, of the steps it has taken in response to the observations made above.

Communication No. 122/1998

Submitted by:M.R.P. (name deleted)

[represented by counsel]

Alleged victim:The author

State party:Switzerland

Date of communication:7 October 1998

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 24 November 2000,

Having concluded its consideration of communication No. 122/1998, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available by the author of the communication and the State party,

Adopts the following decision:

1.1The author of the communication is Mr. M.R.P., a citizen of Bangladesh born in 1969 and currently residing in Switzerland, where he applied for asylum on 29 August 1997. His application having been turned down, he maintains that his forcible repatriation to Bangladesh would constitute a violation by Switzerland of article 3 of the Convention against Torture. He is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 27 November 1998. At the same time, the State party was requested, pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, not to expel the author to Bangladesh while his communication was under consideration by the Committee. In a submission dated 22 January 1999, the State party informed the Committee that steps had been taken to ensure that the author was not returned to Bangladesh while his case was pending before the Committee.

The facts as submitted by the author

2.1The author claims to be a member of the Bangladesh National Party (BNP), the main opposition political party. He was president of the BNP Union from 1994 to 1997 and vice‑president of a regional BNP youth organization (the Yuba Dubal) as of 1997.

2.2On 13 January 1997, the author and his brother were apparently attacked by members of the Awami League (AL), the political party in power. The author managed to flee, but his brother was seriously injured. A complaint was lodged with the police. The police arrested one of the suspected attackers, but quickly released him without charge. Members of the arrested person’s family also exerted pressure on the author, who in the end withdrew his complaint.

2.3After that incident, the author was forced to leave his home during the day. In the night of 13-14 June 1997, an AL member who was a driver for one of the organization’s leaders, Mr. Shafijrahman, was killed. The attack’s intended victim was apparently Mr. Shafijrahman himself, who was prompted to lodge a complaint against the author and four other BNP sympathizers. In that regard, the author points out that, in Bangladesh, it is common practice for BNP members to have complaints lodged against them and to be charged on non‑existent grounds; this, in fact, constituted an abuse of power by AL members to intimidate and eliminate political opponents. After the complaint was lodged, the author decided to leave his country immediately.

2.4The author arrived in Switzerland on 26 August 1997 and applied for asylum on 29 August 1997. His application was turned down on 7 January 1998, essentially on the grounds that the attack against him and his brother had not been carried out by the State. The author appealed the ruling to the Swiss appeals court dealing with asylum matters. The appeal was rejected on 15 April 1998.

Merits of the complaint

3.1The author states that Bangladesh is a country with gross, flagrant and mass human rights violations, within the meaning of article 3, paragraph 2, of the Convention. Given that a complaint had been lodged against him, there is serious reason to believe that he risks being subjected to torture should he be returned to Bangladesh. Torture and ill-treatment are commonplace in Bangladesh, the prisons are overcrowded and prison sanitary conditions are inhuman. The author claims that, in December 1997 alone, at least four people were killed while remanded in custody.

3.2The author also recalls that the vice-president of Yuba Dubal had been the target of intimidation on the part of Awami League members more than once. He considers that the charge of murder against him is part and parcel of the climate of oppression prevailing in his country and that the aim is to eliminate him personally as an opponent. He also considers that, if he had been arrested, he would probably be in prison and the victim of abusive treatment and torture. Since the judiciary is controlled by those in power, it is unlikely he would be acquitted and he therefore ran the risk of life imprisonment or the death penalty.

Observations by the State party on the admissibility and merits of the communication

4.1The State party did not contest the admissibility of the communication and, in a letter dated 18 June 1999, made observations on its merits.

4.2The State party points out that there remains some doubt as to the author’s true identity. Those doubts stem not only from the fact that the author’s name is spelled in two different ways in the translation of the documents he produced, but also from the absence of the certificate that the author undertook to provide. It is therefore difficult to be certain that the documents submitted to the Swiss authorities refer to the author.

4.3The State party also wishes to inform the Committee about the contradictions observed in the course of the two hearings during the asylum procedure. At the first hearing, the author stated that the person who had been killed was called Babu, but, at another hearing, he said that the person was called Abul Kalama and that he knew of no other name for that person. The State party nevertheless emphasizes that that contradiction alone is not a sufficient basis for concluding that the communication is unfounded.

4.4The State party considers, contrary to the author, that the Bangladeshi police took a number of measures to prosecute the perpetrators of the attack on the author and his brother. In addition, the author and his brother could have taken the matter to a higher court. Lastly, the State party points out that, after the incident, the author continued to live at home, which would seem to prove that he no longer stood in great fear of his political enemies.

4.5Although it acknowledges the existence in Bangladesh of politically motivated complaints (i.e. complaints that are not based on facts, but whose sole aim is to cause trouble for a political adversary), the State party underlines that the administrative inquiries that follow on

the complaints are legitimate and therefore in no way reflect political motivation on the part of the State. The State party also points out that the Special Powers Act, which allows for unlimited detention without trial, is not applicable in the author’s case and that there is therefore little likelihood that the author will be imprisoned for an indefinite time.

4.6With regard to the author’s allegations that the courts and tribunals of Bangladesh are corrupt and controlled by the Government, the State party considers that, while that may be the case for lower courts, higher courts are independent and impartial. There is therefore no evidence that the author would not be granted the benefit of an impartial and fair trial.

4.7According to the State party, neither the risk of being tried by a Bangladeshi court nor the fact that he might be imprisoned, and could therefore be subject to ill-treatment, are reasons to prevent the author’s expulsion on the basis of article 3 of the Convention.

Author’s comments

5.1The author comments on the State party’s observations on the merits of the communication in a letter dated 10 August 1999.

5.2The author points out that the State party recognizes that, in Bangladesh, extremists from certain parties lodge complaints against opponents for purely political reasons and that certain lower courts are corrupt and not independent. The State party therefore does not dispute the fact that the author would probably be imprisoned on arrival in Bangladesh, that he risks being

ill‑treated and tortured while being held, that he would probably be convicted by a lower court and that he would have to wait for a higher court to consider his case to obtain what might be a fair trial.

Issues and proceedings before the Committee

6.1Before considering any of the allegations in a communication, the Committee against Torture must decide whether or not the communication is admissible under article 22 of the Convention. It has ascertained, as it is required to do in accordance with article 22, paragraph 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. It also notes that all domestic remedies have been exhausted and that the State party has not contested the admissibility of the communication. It therefore considers that the communication is admissible. As both the State party and the author have provided observations on the merits of the communication, the Committee proceeds with the consideration of those merits.

6.2The issue before the Committee is whether the forced return of the author to Bangladesh would violate the obligation of the State party under article 3 of the Convention not to expel or return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

6.3The Committee must decide, pursuant to article 3, paragraph 1, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to Bangladesh. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to the country. There must be other grounds indicating that the individual concerned would be personally at risk. However, the absence of a consistent pattern of gross violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

6.4The Committee recalls its general comment on the implementation of article 3, which reads:

“Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

6.5The Committee notes the arguments advanced by the author and by the State party regarding the alleged risk of the author’s being tortured and considers that the latter has not produced enough evidence to show that he would run a personal real and foreseeable risk of being tortured in Bangladesh.

6.6The Committee therefore finds that the information submitted to it does not demonstrate that there are substantial grounds for believing that the author would be in danger of being personally tortured if returned to Bangladesh.

6.7Accordingly, the Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the decision of the State party to return the author to Bangladesh does not constitute a breach of article 3 of the Convention.

Communication No. 123/1998

Submitted by :Z.Z. (name withheld)

[represented by counsel]

Alleged victim:The author

State party:Canada

Date of communication:11 November 1998

The Committeeagainst Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 15 May 2001,

Having concluded its consideration of communication No. 123/1998, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1The author of the communication, dated 11 November 1998, is Mr. Z.Z., a citizen of Afghanistan, born on 8 July 1948. He was deported to Afghanistan on 27 November 1998, following a conviction for drug offences in Canada. He claims that his deportation to Afghanistan constitutes a violation by Canada of the Convention. He is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 11 December 1998 and requested the latter to provide observations on the admissibility and merits of the communication.

The facts as presented by the author

2.1The author allegedly fled Afghanistan in 1977 at the time of the armed intervention of the Soviet Union in the Afghan conflict. His brother was killed by Soviet forces and he feared the same fate. He went to Iran where he remained for two years without legal status. He then travelled to Pakistan where he also remained two years without a legal status. From Pakistan, the author decided to enter India where he requested to be recognized as a refugee by UNHCR. He was allegedly recognized as a Convention refugee but did not keep any evidence of it. However, having no work permit and no right to education, the author decided to join his brother who had been recognized as a refugee in Canada.

2.2The author arrived in Canada in 1987 on a false passport. Upon his arrival in Montreal, he applied for asylum. He was found to have a credible basis for his refugee claim, which entitled him to apply for permanent residence, and he became a permanent resident in 1992.

2.3On 29 June 1995, the author, found guilty of importing narcotics, was sentenced to 10 years’ imprisonment. On 10 April 1996, the Minister of Citizenship and Immigration declared him a “danger to the public in Canada” and decided that he should therefore be removed to his country of origin. The Minister argued that the serious criminal offence of which he had been convicted and the need to protect Canadian society outweighed any humanitarian and compassionate considerations. The author applied for review of this decision before the Federal Court but his application was denied.

2.4On 4 November 1998, the author attended a detention review hearing during which he was told that his detention would continue and that his removal would take place on 14 November 1998. The same day, counsel for the author faxed a request to the Removal Officer to defer the deportation until a proper risk assessment had been made, referring to recent documentation about the situation in Afghanistan.

2.5The request being denied, the author sought a stay of the expulsion order in the Federal Court Trial Division, arguing that because of his ethnic background, he would be subjected to torture if removed to Afghanistan. On 12 November 1998, the Court refused the stay. Finally, on 13 November 1998, the author applied for an interim injunction before the Ontario Court of Justice to stay the execution of the deportation order. The application was dismissed because the matter had already been decided by the Federal Court.

2.6In his submission to the Committee dated 11 November 1998, the author argued, in relation to the issue of exhaustion of internal remedies, that as soon as the Court rendered its decision on the application for the stay of removal, there would be no other internal remedy left.

2.7The author alleges that the State party did not make a proper risk assessment at the time of the decision in April 1996 nor any subsequent review of the risk assessment, despite the existence of major political and human rights problems in the country to which the author was to be deported. The Taliban had become a major actor in the Afghan political situation and conditions in the country had changed dramatically as a consequence.

2.8The author is a Sunni Muslim and a member of the Tajik ethnic group. The bigger part of Afghanistan is at present controlled by the Taliban who, although Sunnis, are of a different ethnic group, the Pashtun.

2.9The author states that Afghanistan continues to experience civil war and political instability and that ethnic divisions are increasingly influencing the fighting. The Taliban, who emerged as a military and political force in 1994, are an ultra‑conservative Islamic movement. In January 1997, they were controlling two thirds of Afghanistan including Kabul, the capital.

2.10In addition to the general situation of insecurity caused by the internal armed conflict between the Taliban and other factions, the human rights situation in the territory controlled by the Taliban is of serious concern. According to the author, there is discrimination between the different ethnic groups. The Taliban have detained hundreds of people solely because of their ethnic origin. Among these minority groups are the Uzbeks, Tajiks, Hazaras, Shi’ite Muslims and Turkmen. The author submits that a significant number of Tajiks have been detained and some of them have disappeared.

2.11The author also refers to Amnesty International reports stating that Taliban guards have beaten and kicked people in custody and that long-term prisoners have been severely tortured. It is also submitted that according to a Human Rights Watch report on one of the worst massacres of civilians committed by the Taliban, in August 1998 when they took Mazar-el-Sharif, the author’s city of origin, in the days after the incident the Taliban searched and arrested all males of Hazara, Uzbek and Tajik origin in the city. Moreover, since the city jail was overcrowded, thousands of the detainees were transferred to other cities in large container trucks holding 100‑150 persons. In two known instances, nearly all the men in the container were asphyxiated or died of heat stroke.

The complaint

3.1At the time of the submission of his communication, the author alleged that he would be at serious risk of torture if he were removed to Afghanistan, and that the decision to forcibly remove him to Afghanistan would entail a violation of article 3 of the Convention. It is also submitted that no competent official of the State party has properly assessed whether there was a risk of torture. As a result, there has been both a substantive and a procedural violation of the Convention.

3.2The author recalls that the specific prohibition on removing persons to where they may be at risk of torture is explicitly enshrined in article 3 of the Convention against Torture. In determining whether article 3 should apply, the Committee should base itself on whether there is a consistent pattern of gross, flagrant or mass violations of human rights in the country concerned and whether the author runs a personal risk, which may emanate from his/her class or character.

State party’s observations on the admissibility and merits

4.1In a submission dated 14 December 1999, the State party transmitted to the Committee its observations on both the admissibility and merits of the case.

On the admissibility

4.2The State party submits that the communication was inadmissible as the author had not exhausted the internal remedies as required by article 22 (5) (b) of the Convention and rule 91 of the Committee’s rules of procedure. It underlines that it is a fundamental principle of international law that local remedies must be exhausted before a remedy is sought from an international body. This principle gives the State an opportunity to correct internally any wrong that may have been committed before the State’s international responsibility is engaged.

4.3Under the Immigration Act, judicial review of decisions are available before the Federal Court Trial Division, and it is submitted that an applicant does only need a “fairly arguable case” or “a serious question to be determined” for leave to be granted.

4.4The State party argues that the Committee, as well as other international tribunals, consider judicial review as an available and effective remedy. In the case M.A. v. Canada (CAT/C/14/D/22/1995), the author was granted refugee status but later declared a threat to Canadian security so that he had to be removed from Canada. The communication was declared inadmissible because the author was in the process of challenging the removal decision by way of judicial review. The European Court of Human Rights has a similar jurisprudence and considers that judicial review provides a sufficiently effective remedy in asylum cases.

4.5In the present case, the author’s application to the Federal Court Trial Division for leave for judicial review of the Minister’s opinion that the author constituted a danger to the public was denied on 8 September 1997. On 5 November 1998, the author applied to the Federal Court Trial Division against the decision of the Removal Officer not to defer deportation. He subsequently submitted the present communication to the Committee on 11 November 1998 before the Federal Court could examine his application.

4.6Moreover, the author failed to perfect the application for judicial review by filing an Application Record within the prescribed period. In this regard, the State party again refers to the jurisprudence of the European Court of Human Rights according to which complainants have to respect and follow domestic procedures also with respect to time limits before bringing an international claim.

4.7The State party argues that the Federal Court could have examined the case if the application of 5 November 1998 had been perfected and leave had been granted, which could have led to a reconsideration of the case.

4.8The author also brought an action in the Federal Court Trial Division challenging the constitutionality of the provision denying him the opportunity to claim refugee protection. He also argued that the Immigration Act and the immigration process are contrary to the Canadian Charter of Rights and Freedom because neither requires a risk assessment. The author, however, did not continue this action, which was, at the time of the submission, still pending. He could indeed have instructed his lawyer to proceed on his behalf. The State party argues in this connection that the author’s deportation does not render his rights or pending actions ineffective or moot.

4.9The State party also submits that the author could have sought a humanitarian and compassionate assessment of his case. It refers to X v. Sweden where the Committee found that such an application was an effective remedy since the Appeals Board in that case had the competence to grant the authors a residence permit. This option was available to the author prior to the deportation and there was no time limit for submitting it.

4.10The State party deems that the above-mentioned remedies are effective in the sense of article 22 (5) of the Convention. The author should therefore have pursued them prior to petitioning the Committee and has failed to exercise due diligence in not doing so.

On the merits

4.11As for the risk faced by the author, the State party refers to the principle, laid down by the Committee in the case Seid Mortesa Aemei v. Switzerland, that it has to determine “whether there are substantial grounds for believing that [the author] would be in danger of being subjected to torture [in the country to which he is being returned]” and “whether he would be personally at risk”. The State party also recalls that the burden of proof is on the author to establish that there are substantial grounds to believe that he or she would be personally at risk of being subjected to torture.

4.12The State party submits that since the protection provided by article 3 is, according to the Committee’s jurisprudence, absolute, irrespective of the author’s past conduct, the determination of risk must be particularly rigorous. To that purpose, it refers to a decision of the European Court of Human Rights where it is stated with regard to article 3 of the European Convention on Human Rights that “the Court’s examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision”.

4.13In order to assess the risk of torture faced by the author, the State party contends that the following factors are pertinent: (a) whether the State concerned is one in which there is evidence of a consistent pattern of gross, flagrant or mass violation of human rights; (b) whether the author has been tortured or maltreated by or with the acquiescence of a public official in the past; (c) whether the situation referred to in (a) has changed; and (d) whether the author has engaged in political or other activity within or outside the State concerned which would appear to make him particularly vulnerable to the risk of being tortured.

4.14Contrary to the author’s allegations, the State party emphasizes that the risks faced by the author upon his return to Afghanistan were assessed by the Minister of Citizenship and Immigration in April 1996 when considering whether the author was a danger to the public. The jurisprudence cited by the author to support his argument has not always been followed and is now under appeal before the Federal Court of Appeal. Moreover, the State party submits that it is not for the Committee to question its internal procedures on risk assessment. Finally, such a risk assessment was also evaluated by the Federal Court Trial Division on the request to stay the deportation.

4.15The State party considers that the author has not demonstrated, on a prima facie basis, that he is personally at risk of torture because of his ethnic origin. Although it is not denied that there are violations of human rights perpetrated by the Taliban, there is no indication that the Tajiks are specifically targeted. The State party refers to information from the Research Directorate of the Canadian Immigration and Refugee Board stating that persecution is rather aimed at the Shia Hazar people and the Turkish-speaking supporters of General Dostam. The same source of information underlines that, “generally, people who are suspected of supporting … the Northern Alliance would be under tight surveillance from the Taliban security forces. Ethnic affiliation is not a primary reason for being targeted by the Taliban …; however, Tajiks living under the Taliban rules are careful and venture in the streets of Kabul with caution”. Moreover, the report indicates that Tajiks can freely and safely live in the north of Afghanistan while the ones living on the territory controlled by the Taliban are not systematically targeted for surveillance. There is also no evidence that torture is routinely practised by the Taliban against the Tajiks, the author himself acknowledges in his communication that “torture does not appear to be a routine practice in all cases”.

4.16The State party further argues that the author did not bring any evidence that he would be personally at risk of torture in Afghanistan. There is no evidence that the author was ever arrested and the reasons for which he left his country in 1977 no longer exist. Neither has the author stated that persons in his entourage were persecuted or tortured because they were Tajiks, nor has the author been engaged in a political activity that could draw the Taliban’s attention. The facts alleged therefore do not reveal a prima facie case that his expulsion would expose him to the risk of torture.

4.17The State party submits that the present communication is based on exactly the same facts as those presented to the Minister of Citizenship and Immigration when he made his “danger opinion” and those presented on judicial review before the Federal Court Trial Division. As a consequence, since the national proceedings did not disclose any manifest error or unreasonableness and were not tainted by abuse of process, bad faith, manifest bias or serious irregularities, the Committee should not substitute its own findings on whether the author risks being subjected to torture in Afghanistan; it should not become a “fourth instance” that would re‑examine the findings of facts by the internal authorities.

4.18As a consequence, the State party is of the view that, on the basis of the criteria referred to in paragraph 4.13 above, there is no indication: (a) that the author was tortured or maltreated by or with the acquiescence of a public official in Afghanistan in the past; (b) that he is currently being sought by Afghan authorities; (c) that persons in his immediate circle were arrested or tortured because they are Tajiks; (d) that ethnic Tajiks are specifically targeted for mistreatment; and (e) that he has been involved in any high-profile activity that could draw the attention of the Taliban.

4.19The State party therefore requests that, if the communication is declared admissible, it is declared without merits.

Counsel comments

On the admissibility

5.1In a submission of 21 January 2000, counsel for the author made her comments on the observations of the State party. In connection with the exhaustion of internal remedies, counsel recalls that the author was granted permanent residence in 1992 and that he was later convicted of a criminal offence leading to the deportation order issued against him. Under the Immigration Act, a person can be deported from Canada and denied access to the refugee procedure if the Minister certifies the person as a “danger to the public in Canada”. In this case, the only issue is whether or not the person is a danger to the public in Canada, not whether the person is at risk. As a result, when such a decision is taken, the person no longer has a right to appeal to the Appeal Division and is also denied a right to make a refugee claim.

5.2Counsel reiterates that the procedure for certifying that a person is a danger to the public in Canada is not an adequate assessment of risk. She considers that the position of the State party has consistently been that, in certain circumstances, persons who constitute a danger to the public can be deported to their countries of origin even when there is a risk of torture. This was also the substance of the ruling of the Court of Appeals in the case Suresh v. M.C.I. (Minister of Citizenship and Immigration). The interpretation of the Federal Court of Appeal is that the Convention does not prohibit in all cases deportation to countries where there is a significant risk of torture. It is therefore counsel’s contention that the official position of the State party, as substantiated by the second highest court in Canada, is that persons can be deported to countries where there would be a substantial risk of torture if there is a compelling State interest. Counsel submits that the Committee must act urgently to make its view clear to the State party that removal to countries where there is a risk of torture is not permitted under any circumstances.

5.3Counsel argues that, as a result of the deportation and the fact that she is unable to receive instructions from the author, the obligation to challenge the decision to execute deportation by internal remedies has become moot. The same may be said for the questioning of the constitutionality of the provision denying the author the opportunity to claim refugee protection. As a consequence, once the author was unable to obtain a stay of the deportation and was indeed deported, all domestic remedies had been exhausted because the deportation order was executed. To perfect applications challenging a decision to execute a decision of removal under these circumstances would, according to counsel, be meaningless.

On the merits

5.4With respect to the merits, it is the counsel’s opinion that no person has adequately and properly assessed the risk run by the author. To allow any assessment of risk to be made within the context of a determination as to whether a person is a danger to the public to permit his deportation is, according to counsel, unsatisfactory. The risk assessment has to be conducted independently of any evaluation of danger. Counsel submits that the Committee should know whether or not the State party concluded that the author was at risk. This is particularly important in light of the position of the State party that deportation to countries where a person risks torture is possible under certain circumstances.

5.5Moreover, counsel is of the opinion that the assessment of risk made by the State party after the removal of the author is not satisfactory. The assessment should have taken place prior to the removal.

5.6As for the current situation of the author, counsel acknowledges that she has been unable to communicate with him. Counsel argues, however, that the State party has not made any effort to verify the author’s current situation and determine whether he is safe and at risk of being subjected to torture.

Additional comments by State party

6.1In a submission of 10 May 2000, the State party argued with regard to the admissibility of the case that a positive determination on the application on humanitarian and compassionate

grounds could have enabled the author to remain in Canada. Furthermore, the State party reiterates its arguments that the removal of the author did not render his rights or pending actions ineffective or moot.

6.2With regard to the merits of the case, the State party submits that, in its consideration as to whether the author constituted a danger to the public in Canada, the Minister did assess the risk faced by the author in case of return to Afghanistan. Such assessment was also done by the Federal Court Trial Division in its 12 November 1998 decision.

6.3The State party finally reiterates its concern that the Committee should not become a fourth instance by re-evaluating findings of domestic courts unless there was a manifest error or if the decision was tainted by abuse of power, bad faith, manifest bias or serious irregularities.

Additional comments by counsel on behalf of the author

7.1In a submission of 7 June 2000, counsel underlined that the application on humanitarian and compassionate grounds is not an effective remedy because it does not stay the removal; in any event it was useless to pursue an application challenging a decision of removal after the deportation had been executed.

7.2Counsel also repeated that the “danger opinion” is not a risk assessment and that the decision of the Federal Court was based on misconstructions of evidence, and the judge had no expertise in assessing risk.

Issues and proceedings before the Committee

8.1Before considering any claims contained in a communication, the Committee must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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.

8.2With regard to the exhaustion of domestic remedies, the Committee has taken note of the observations by the State party and by the author’s counsel. Pursuant to article 22, paragraph 5 (b), of the Convention, the Committee is precluded from considering any communication unless it has been ascertained that all available domestic remedies have been exhausted. This rule does not, however, apply if it is established that the application of domestic remedies has been or would be unreasonably prolonged or would be unlikely to bring effective relief to the presumed victim. In this connection, the Committee notes that the author was removed to Afghanistan on 27 November 1998. The Committee therefore declares the communication admissible.

8.3The Committee notes that both the State party and the author’s counsel have provided observations on the merits of the communication. It therefore decides to consider the merits at the present stage.

8.4The Committee is of the opinion that the author did not bring any evidence that he would be personally at risk of being subjected to torture if he were returned to Afghanistan. The Committee also noted that the author has not suggested that he had been subjected to torture in the past. Nor has he alleged that he has been involved in any political or religious activities such that his return could draw the attention of the Taliban to the extent of putting him at personal risk of torture.

8.5The author only brought information on the general situation in Afghanistan and claimed that, as a member of the Tajik ethnic group, he would face torture upon return to Afghanistan. Although it recognizes the difficulties encountered by some ethnic groups in Afghanistan, the Committee considers that the mere claim of being a member of the Tajik ethnic group does not sufficiently substantiate the risk that the author would be subjected to torture upon return.

9.As a consequence, the Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is of the view that the facts as presented by the author and as found by the Committee do not reveal a breach of article 3 of the Convention.

Notes

Communication No. 128/1999

Submitted by:X.Y. (name deleted)

[represented by counsel]

Alleged victim:The author

State party:Switzerland

Date of the communication:2 March 1999

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 15 May 2001,

Having concluded its consideration of communication No. 128/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available by the author of the communication and the State party,

Adopts the following decision:

1.1The author of the communication, Mr. X.Y., born on 20 March 1960, is a Syrian national of Kurdish origin. He currently resides in Switzerland, where he applied for political asylum. His application was rejected, and he maintains that his forcible repatriation to the Syrian Arab Republic would constitute a violation by Switzerland of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He has asked the Committee to take emergency measures, since at the time he submitted his communication he was liable to imminent expulsion. He is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 12 March 1999. At the same time the State party was requested, pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, not to expel the author to the Syrian Arab Republic while his communication was under consideration by the Committee. In a submission dated 12 May 1999 the State party informed the Committee that steps had been taken to ensure that the author was not returned to the Syrian Arab Republic while his case was pending before the Committee.

The facts as submitted by the author

2.1The author claims that he has been a member of the Kurdistan Democratic Party in Iraq (KDP-Iraq) since 1980. As such, he allegedly participated in various activities of that organization, chiefly by transporting funds to support Kurds in Iraq and by distributing pamphlets deploring the situation of the Syrian Kurds, who had been stripped of their nationality by the Syrian State.

2.2The author claims that he was twice arrested by the Syrian security forces. The first time, during the Iraqi invasion of Kuwait, he was in possession of funds intended for Iraq. He was freed after 18 days, only after a large sum of money had been paid by his family for his release. The second arrest reportedly took place in 1993. On that occasion, the author was held for 96 days in Mezze prison near Damascus and was reportedly tortured. He was released only after swearing to forgo any political activities in the future. His family again paid approximately 6,000 United States dollars to secure his release.

2.3Subsequently, however, the author continued his political activities. In March 1995 he was warned by a family member who had reportedly received information from the security services that he was going to be arrested once again. The author then decided to flee the country and crossed the border into Lebanon illegally. He left Lebanon by boat in March, but it is not clear when he arrived in Europe. Nevertheless, on 10 April 1995 he applied for political asylum in Switzerland, largely on the basis of his alleged persecution in the Syrian Arab Republic.

2.4The author’s request for asylum was turned down on 28 May 1996 by the Federal Office for Refugees as being implausible, and 15 August 1996 was set as the deadline for the author’s departure from Swiss territory. Subsequently the author appealed against that decision to the Swiss Appeal Commission on Asylum Matters, supporting his appeal with a medical report certifying that he might have been tortured in the past. The Appeal Commission dismissed the appeal on 8 July 1996, declaring it inadmissible on the grounds that the deadline for submission of an appeal had not been met.

2.5On 8 August 1996 the author submitted a request for reconsideration of his case (an extraordinary recourse allowing for review of decisions that had already been executed) by the Federal Office for Refugees. The applicant specifically requested that it should be noted that execution of his expulsion from Switzerland constituted a violation of the principle of non‑refoulement set out in the Convention on the Status of Refugees (art. 33), the prohibition of torture contained in article 3 of the European Convention on Human Rights and articles 2 and 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Federal Office for Refugees rejected the request for reconsideration on 9 August 1996, maintaining that the applicant had not presented any new facts or evidence but was merely seeking to have the facts set out in his initial appeal considered in a different light. (The Federal Office for Refugees also ordered the immediate execution of the applicant’s expulsion from Switzerland, on the grounds that it was not contrary to Switzerland’s legislative or treaty obligations.)

2.6On 8 September 1996 the author appealed against the decision of the Federal Office for Refugees. In the light of the new appeal, in which the author sought to prove that execution of his expulsion was wrongful under the Convention relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Swiss Appeal Commission on Asylum Matters suspended execution of the expulsion and authorized the author to remain in Switzerland pending the outcome of his appeal. The Federal Office for Refugees was consulted in the context of that appeal, and on 29 April 1997 it upheld its position that the applicant’s expulsion to the Syrian Arab Republic would place him in physical danger. As part of the same appeal, the author’s counsel maintained his conclusions on 20 May 1997.

2.7The appeal was considered on the merits and rejected by a decision of the Appeals Commission dated 18 June 1998; the Commission held that the applicant had not provided grounds for reconsideration of his case and that he faced no real risk of torture should he be sent back to the Syrian Arab Republic. Following that decision the author was invited to leave Swiss territory by 15 February 1999.

Merits of the complaint

3.The author bases his complaint on the allegation that if he is sent back to the Syrian Arab Republic by Switzerland he risks being subjected to cruel, inhuman and degrading treatment; specifically, he risks being tortured by the authorities. He also believes that, if sent back, he would risk torture because he left the Syrian Arab Republic illegally. In the author’s view, it is clear that a consistent pattern of gross, flagrant and massive violations of human rights exists in that country which, under article 3, paragraph 2, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, constitute circumstances that a State party must take into account when deciding to expel someone. Consequently, the author believes that Switzerland should not expel him, or else risk violating the Convention.

Observations by the State party on admissibility

4.1In its note dated 12 May 1999, the State party describes the various stages of the process followed by the author in seeking asylum. It specifically faults the author for not meeting the deadlines for appealing against the decision by the Federal Office for Refugees not to grant political asylum. The State party claims that failure to meet the deadline for filing an appeal made it necessary for the Swiss Appeal Commission on Asylum Matters to conduct an extraordinary review of the case, based solely on the existing case file, in order to determine whether the applicant faced an obvious risk of persecution or treatment that violated human rights in his country of origin. That review, according to the State party, was narrower in scope than the review that the Appeal Commission would have conducted had the appeal been filed through regular channels. Nevertheless, the State party declares that it does not contest the admissibility of the communication.

The author’s comments on the State party’s observations on admissibility

5.1The author addresses his comments to the observations made by the State party on 28 June 1999. He acknowledges that the review process focused exclusively on whether Switzerland had complied with its international obligations and not on Swiss legislation governing asylum. The author refers to the jurisprudence of the Swiss Appeal Commission on Asylum Matters (JICRA 1995, No. 5), which states that “an applicant for asylum had the right, independently of formal questions of deadlines, to have the question of whether his or her expulsion was executed in accordance with the principle of non-refoulement (article 33 of the Convention relating to the Status of Refugees) or the prohibition of torture and other inhuman treatment (article 3 of the European Convention on Human Rights or article 3 of the Convention against Torture) considered at any time. These principles are in fact held to be absolute, and the expiry of a procedural deadline cannot be used to justify their violation”.

5.2Accordingly, the author declares that the decision issued by the Swiss Appeal Commission on Asylum Matters on 18 January 1999, from the standpoint of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concerned the question of the risk of torture he faced if he was sent back to the Syrian Arab Republic. This proves, in the author’s view, that the question on which the Committee was being asked to rule had already been considered by the competent national authority.

Observations by the State party on the merits

6.1The State party transmitted its remarks on the merits of the communication on 13 September 1999. It reviewed the procedure followed in the case and stated that with regard to the final decision - that taken by the Appeal Commission on 18 January 1999 - the Appeal Commission had conducted a review that was narrower in scope than would have been the case had the author followed the ordinary appeal procedures.

6.2The State party contends that the communication contains no new information beyond that considered when the case was dealt with through national procedures.

6.3Secondly, the State party points out that the author had not provided any evidence to support several of his allegations, particularly with regard to the statement that he had been detained in a prison in Damascus for 96 hours for having criticized the regime and that he had been released only after his family had paid money and he had signed a statement renouncing politics. The author’s release was not documented. The State party also maintains that the act of distributing anti-Government pamphlets ought to have resulted in a heavy prison sentence. Given that the payment of money by his family was not proved and that the author had been released after only three months of detention, the State party believes that this can be taken to indicate the unlikelihood of the author’s alleged KDP activities.

6.4The State party then proceeds to review the overall human rights situation in the Syrian Arab Republic and comment on several of the documents submitted by the author with regard to the situation of Kurds in that country. While giving credence to some of the information provided, it recalls the Committee’s practice, which holds that the existence in a country of gross, flagrant or massive violations of human rights does not in itself constitute grounds for stating that a person risks being subjected to torture upon his or her return to that country.

6.5Next the State party considers the author’s personal situation with a view to confirming whether there were serious grounds for admitting that he was likely to be subjected to human rights violations in the Syrian Arab Republic. According to the State party, KDP-Iraq was not an illegal organization in Iraq; moreover, it appears to have enjoyed the support of the authorities. According to various sources, the Syrian security forces persecuted KDP activists only if the security of the Syrian State was threatened by their actions - for example, activities hostile to the Syrian regime, which does not seem to apply in the present case. The State party concludes that under these circumstances it can be concluded that the author ran no special risk of being subjected to treatment in violation of article 3 of the Convention if he returned to the Syrian Arab Republic, particularly as the alleged arrests dated back six and eight years.

6.6The State party maintains that the documents from KARK-Switzerland and KDP-Europe submitted by the author certifying that he was a member of KDP-Iraq cannot in themselves prove that the author was likely to be subjected to prosecution or treatment that contravened article 3 of the Convention if he was sent back to his country.

6.7According to the State party, the author never reported that he had been subjected to torture, either during the hearings at the transit centre or to the Federal Office for Refugees. The author’s counsel apparently reproached the authorities with failing to question the petitioner on that specific point. The State party replies that it could “legitimately be expected that a person who subsequently claimed he had to leave his country for fear of being subjected again to torture would at least mention this circumstance when questioned in the host country about the reasons for applying for asylum”.

6.8The State party queries the fact that the author only produced a medical certificate dated 20 August 1996 stating that he could have been subjected to torture in the past when he appeared before the Swiss Appeal Commission on Asylum Matters and not when filing his initial application for asylum. The State expresses surprise that a seeker of asylum on grounds of torture waited to have his application turned down before producing a medical certificate, whose evidential status was, moreover, compromised by the fact that three years had passed since the alleged facts. The State adds that, even if one considered the author’s allegation that he had been subjected to torture in the past to be well founded, it did not follow that he ran a foreseeable personal and present risk of being subjected to torture again if he was returned to the Syrian Arab Republic.

6.9With regard to the author’s fears of being exposed to inhuman and degrading treatment for having left Syrian territory illegally, the State party notes that the author’s allegations that he had left the Syrian Arab Republic under threat of reprisals by the Syrian authorities lacked credibility. There is no evidence to back the claim that the author’s uncle had been warned of his imminent arrest. However, evidence that the petitioner was under threat at the time of leaving his country is, the State party notes, a prerequisite for the granting of asylum. Moreover, the author has not furnished proof of having left Syrian territory illegally. And even if he had, the penalty for such an offence would be a fine or term of imprisonment, which cannot be considered to be a breach of article 3 of the Convention.

6.10With regard to the risks incurred by the author for having applied for asylum in Switzerland, the State party considers that the Syrian authorities would not subject him to inhuman or degrading treatment solely on that account, since they are aware of the fact that many of their nationals try in this way to obtain residency permits in Europe. The State has no concrete evidence to the effect that asylum-seekers returned to the Syrian Arab Republic are subjected to treatment that violates article 3 of the Convention.

6.11Lastly, the State party considers the author’s allegation that he would risk persecution because of his close links in Switzerland with movements that opposed the Syrian regime. The State party notes that the author’s statements on the subject are very vague and insubstantial, indicating that the activities in question were on a very limited scale; otherwise, the author would have described them in detail to the Swiss asylum authorities in his own interest.

6.12The State party concludes that, under the circumstances and following careful scrutiny of the case, substantial grounds do not exist for believing that the author would be in danger of being subjected to torture if he was returned to the Syrian Arab Republic. The State party refers to the Committee’s general comment of 21 November 1997 in support of its argument that the communication does not contain the minimum factual basis needed to back up the author’s allegations. The State requests the Committee to find that the return of the author to his country of origin would not constitute a violation of Switzerland’s international obligations.

The author’s comments on the State party’s observations

7.1The author submitted his comments on 14 January 2000. With regard to the lack of evidence of arrest and torture, he states that the practical difficulties involved in gathering such evidence have been overlooked. Any attempt to obtain such documents at present would place his family and those connected with him in danger. He claims not to have received any document on his release that could serve as proof of his imprisonment.

7.2The author draws attention to a number of reports concerning the situation of the Kurds in the Syrian Arab Republic. In particular, he claims that, according to the Amnesty International Report 1999, although some Kurds arrested in 1997 were released in 1999, others were still in prison for distributing pamphlets hostile to the regime.

7.3With regard to the delay in making the allegation of torture, the author claims that the Committee itself has repeatedly emphasized that it is quite understandable for a torture victim initially to remain silent about his sufferings. As to the certificate containing the findings of torture, the author argues that the Committee does not, in any case, require absolute proof of a risk of future persecution but is satisfied with substantial grounds for fearing a violation of the Convention. The medical report meets the criteria usually required and was issued by an institution of the highest standing (Hôpitaux universitaires de Genève), so that no doubt can be cast on the conclusions of the medical examination.

7.4With regard to his illegal departure from the Syrian Arab Republic, the author states that he agrees with the State party’s comment about the consequences of illegal departure in most cases. In his own case, however, given his political activities, his Kurdish origin and the circumstances of his departure, it should be borne in mind that his illegal departure could be used against him and lead to assaults on his person, in contravention of article 3 of the Convention.

Issues and proceedings before the Committee

8.1Before considering any of the allegations in a communication, the Committee against Torture must decide whether or not the communication is admissible under article 22 of the Convention. It has ascertained, as it is required to do under article 22, paragraph 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. It notes also that all domestic remedies have been exhausted and that the State party has not contested the admissibility of the communication. It therefore considers that the communication is admissible. As both the State party and the author have provided observations on the merits of the communication, the Committee proceeds to consider those merits.

8.2The issue before the Committee is whether the forced return of the author to the Syrian Arab Republic would violate the obligation of the State party under article 3 of the Convention not to expel or return 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.

8.3The Committee must decide, pursuant to article 3, paragraph 1, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to the Syrian Arab Republic. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to the country. There must be other grounds indicating that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

8.4The Committee recalls its general comment on the implementation of article 3, which reads: “Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

8.5The Committee expresses doubts about the credibility of the author’s presentation of the facts, since he did not invoke his allegations of torture or the medical certificate attesting to the possibility of his having been tortured until after his initial application for political asylum had been rejected (paras. 6.7 and 6.8 of the present decision).

8.6The Committee also takes into consideration the fact that the State party has undertaken an examination of the risks of torture faced by the author, on the basis of all the information submitted. The Committee considers that the author has not provided it with sufficient evidence to enable it to consider that he is confronted with a foreseeable, real and personal risk of being subjected to torture in the event of expulsion to his country of origin.

9.Consequently, the Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, considers that the decision of the State party to return the author to the Syrian Arab Republic constitutes no violation of article 3 of the Convention.

Notes

Communication No. 134/1999

Submitted by:M.K.O. (name withheld)

[represented by counsel]

Alleged victim:The author

State party:Netherlands

Date of communication:25 May 1999

The Committeeagainst Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 9 May 2001,

Having concluded its consideration of communication No. 134/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1The author of the communication is Mr.M.K.O., born in 1970 and a Turkish national of Kurdish origin, currently residing in the Netherlands. The author applied for refugee status in the Netherlands on 22 June 1997. His application was rejected. He claims that his deportation to Turkey would expose him to a risk of torture and constitute therefore a violation by the State party of article 3 of the Convention. He is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 26 May 1999 and requested it to provide observations on the admissibility and merits of the communication. The State party was also requested, pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, to defer the removal of the author to Turkey while his communication was under its consideration.

The facts as presented by the author

2.1The author comes from a village located in the region of Tunceli, Turkish Kurdistan, where for many years there has been a war between the Turkish army and the Kurds. He claims to have been urged several times by the Turkish military to become a village guard, which he always refused.

2.2The author alleges that as a village guard he would have to kill Kurds and Alevis, his own people. Because of this refusal, he was very often ill-treated. He was beaten on several occasions by the Turkish militaries. During the winter, the author and other Kurds were forced to stand barefoot in the snow for hours. The author suffers from a kidney ailment as a result. Sometimes he and other Kurds were threatened with death and their food supplies stopped by the Turkish military. The author also alleges that he was arrested on several occasions and taken to the forest or the mountains where he was tortured.

2.3When the author’s neighbours were arrested for giving food to the guerrillas, he decided to leave Turkey because he was afraid of being arrested for the same reason. He arrived in the Netherlands on 21 June 1997 and applied for refugee status the same day. His request was turned down on 22 August 1997.

2.4After two unsuccessful appeals to the Ministry of Justice and to the court, on 22 February 1999, the author made a second application for refugee status, which was also rejected as were the subsequent appeals. The date of 26 May 1999 was set for his removal to Turkey.

2.5The author is an active member of the Kurdish Union in The Hague and in various Kurdish activities. He has run in marathons for the Kurds in the Netherlands and Germany, and has been seen with his Kurdish music band, Zylan several times on MED-TV, a Kurdish television station in Europe which can also be seen in Turkey and which was recently forbidden. On 16 February 1999, he was arrested in the Netherlands along with 300 other Kurds during a demonstration against Abdullah Öcalan’s extradition to Turkey. Since then, he has remained in detention because he does not have a residence permit.

The complaint

3.The author alleges that he will be at serious risk of torture if he is removed to Turkey and that the removal decision is therefore a violation of article 3 of the Convention.

State party’s observations on the admissibility and merits

4.1In a submission dated 6 December 1999, the State party transmitted to the Committee its observations on the merits of the communication. In its communication it did not raise any objections with regard to the admissibility of the communication and made a summary of the facts of the case and of the national procedure, as well as of the various arguments made by the author.

4.2In relation to the merits, the State party considers that not all Kurds from Turkey can be granted asylum and that the author has to prove a personal risk of torture, which he failed to do. Although the State party does not dispute the ethnic origin of the author, it states that the latter was unconvincing on this issue during the asylum procedure; it therefore rejects the allegation by the author that the investigation into his ethnic origin was not conducted with sufficient care.

4.3The State party maintains that the author has not proved that he would attract special attention from the Turkish authorities because he expressly said that he had never been arrested and had never had any problem despite having helped the PKK. It was only during the appeal

phase of the asylum procedure that the author told the Dutch authorities that he was once arrested by three soldiers in civilian clothes. The author has never furnished a clear explanation for this contradiction.

4.4The discrimination and degrading treatment to which the author has allegedly been subjected do not necessarily lead to the conclusion that he should be recognized as a refugee because, although daily life for Kurds in south-eastern Turkey is probably not easy, it is not intolerable and “such treatment probably takes place in the large Kurdish community with a certain amount of arbitrariness”.

4.5Even accepting that the author has had problems with Turkish soldiers does not imply that he would risk such treatment again throughout Turkey. Indeed, the author travelled to Istanbul in 1996 and had no problems. He is therefore free to resettle in another part of Turkey.

4.6Regarding the author’s activities in the Netherlands, the State party considers that the fact of being a member of the band Zylan, of having appeared on MED-TV with his band several times, of having attended PKK celebrations, of having competed in marathons as a Kurd and of having participated in a demonstration in support of Abdullah Öcalan and having been arrested during this demonstration do not constitute significant opposition activities and are therefore not of such a nature as to attract the attention of the Turkish authorities. Even his arrest after the demonstration is not significant in this regard because he was arrested along with many other persons.

4.7In the State party’s opinion, there is no element in the author’s escape from Turkey or in his activities in the Netherlands that provides substantial grounds for believing that he faces a personal risk of being tortured if he were to be returned in Turkey.

Counsel comments

5.1In a submission of 26 January 2000, counsel for the author made her comments on the observations of the State party.

5.2With regard to the Kurdish origin of the author, counsel makes a few remarks in order to explain the confusion that may have emerged during the various interviews. Nevertheless, the ethnic origin of the author is no longer disputed by the State party. Counsel also notes that PKK does not have a membership system for security reasons, which partly explains why the author was not a “member” of any organization.

5.3Counsel argues that the problems faced by the author while he was in Turkey would indeed draw the attention of the Turkish authorities if the author returned to his country. She also notes that it is usual for more information to become available towards the end of the procedure because more questions are asked and because the author, with only a primary-school education, may have had some difficulties in understanding questions at the beginning of the procedure. Counsel also argues that people applying for refugee status as soon as they arrive in the State party do not have sufficient time to reflect on their declarations and are subjected to a significant number of obligations during the first weeks of the procedure, which may sometimes lead to confusion.

5.4Concerning Tunceli, the region of origin of the author, counsel contends that life there has indeed become intolerable and, because the place is a symbol of Kurdish resistance, notes that any person from this area would encounter problems throughout Turkey; this implies that the author could not easily resettle in another part of Turkey. Counsel quotes in this regard the Dutch Foreign Minister who stated that the fact of refusing to be a village guard is interpreted as implicit support for the PKK.

5.5With regard to the demonstration that took place in The Hague on 17 February 1999, counsel mentions that A. Kisaoglu, a Kurd of Dutch nationality, was arrested in Turkey a few days after the demonstration and badly tortured for five days. According to counsel, the Turkish authorities arrested him because they were informed that his son had been arrested during the demonstration in The Hague. However, it appeared later that this was not the case. Counsel considers that this incident demonstrates that the Turkish authorities can obtain information about political events related to the Kurdish question that occur outside Turkey and subsequent arrests or detentions, which raises the possibility of cooperation between the Turkish and Dutch security services.

5.6Moreover, concerning the author’s other activities in the Netherlands, counsel refers to several statements from the Dutch Foreign Ministry according to which MED-TV is considered by the Turkish authorities to be the voice of PKK and that Kurdish music is sometimes forbidden, two elements that would certainly constitute satisfactory reasons for the Turkish authorities to arrest the author upon his arrival in Turkey.

5.7Relying on various other cases, counsel underlines that a significant number of Kurds who have been repatriated from the State party to Turkey and whose whereabouts could be monitored have been detained and tortured by the Turkish authorities.

5.8Finally, to the extent that the author stated from the outset of the asylum procedure that he had been tortured, counsel deplores the State party’s failure to take steps to assess the medical profile of the author, which it had many opportunities to do.

Additional Comments by the State party

6.1In a submission dated 6 September 2000, the State party made additional comments on the observations of the author.

6.2The State party first draws the attention of the Committee to the fact that it no longer disputes the Kurdish origin of the author.

6.3The State party further notes that there has been some confusion and mistranslation on the part of counsel of the words “torture” and other “ill-treatment”, the latter using both terms indifferently.

6.4The State party still considers that the author has not furnished a convincing explanation as to the reasons why he neglected to mention some elements of his story during the first part of the asylum procedure.

6.5The State party also firmly rejects the allegations of counsel that the State party has given information to the Turkish authorities concerning the persons detained after the pro-Kurd demonstration.

6.6In respect of the statement from the Dutch Foreign Ministry on the subject of MED-TV, the State party notes that counsel has cited sentences out of their context and gives the full text of the statements.

6.7The State party emphasizes that it has given continued attention to the situation of Kurds in Turkey. This is illustrated by the fact that the State party suspended the expulsion of Kurds to Turkey after it had been informed of the death in Turkey of a former Kurdish asylum-seeker in the Netherlands. Following the inquiry into this case and four other cases, to which counsel was presumably referring, the State party noted that the persons concerned had not experienced particular problems with the Turkish authorities after their return. These conclusions were endorsed by the judiciary of the State party, and the Government lifted the suspension on expulsions.

6.8Finally, the State party considers that the author also has had ample time to obtain medical documents confirming the treatment to which he claims he was subjected.

Issues and proceedings before the Committee

7.1Before considering any claims contained in a communication, the Committee must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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.

7.2The Committee also notes that all available domestic remedies have been exhausted and that the State party has not contested the admissibility of the communication. The Committee finds therefore that the communication is admissible. The State party and the author have both made observations on the merits of the communication and the Committee therefore proceeds to examine the merits.

7.3The Committee must decide, pursuant to article 3, paragraph 1, of the Convention, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to Turkey. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to that country; additional grounds must exist to show that the individual concerned would be

personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.

7.4The Committee notes the arguments developed by both parties and considers that the author has not given any satisfactory explanation for the contradictions between his different statements to the Dutch immigration authorities. It notes that he fulfilled his military obligation without any appreciable problems and finds that he has not demonstrated that his later activities in the Netherlands could draw the attention of the Turkish authorities to the extent that he would risk being tortured were he removed to Turkey.

7.5The Committee concludes that the author has not furnished sufficient evidence to substantiate his claim that he would run a personal, real and foreseeable risk of being tortured if he were sent back to his country of origin.

8.As a consequence, the Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading treatment or punishment, is of the view that the facts as found by the Committee do not constitute a breach of article 3 of the Convention.

Communication No. 142/1999

Submitted by:S.S. and S.A. (names withheld)

[represented by counsel]

Alleged victim:The authors

State party:The Netherlands

Date of communication:12 July 1999

The Committeeagainst Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 11 May 2001,

Having concluded its consideration of communication No. 142/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1The authors of the communication are Mr. S.S., a Sri Lankan national born on 1 April 1963, his wife Mrs. S.A., a Sri Lankan national born on 28 August 1972, and their daughter, B.S., born on 12 October 1997 in the Netherlands. The authors, all currently residing in the Netherlands, allege that their proposed expulsion to Sri Lanka would violate article 3 of the Convention. The authors are represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 18 August 1999. At the same time, the State party was requested, pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, not to expel the authors to Sri Lanka while their communication was under consideration by the Committee. In a submission dated 28 October 1999, the State party informed the Committee that authors would not be returned to Sri Lanka while their case was under consideration by the Committee.

The facts as submitted by the authors

2.1As to Mr. S.S., a member of the Tamil ethnic group, it is stated that he was held in detention by the Tamil Tiger organization LTTE from 10 January 1995 until 30 September 1995 for having publicly criticized the organization and its leader, and refusing to take part in its activities. During the period of detention, he performed tasks such as woodcutting, filling sandbags, digging bunkers and cooking. Before he was detained by LTTE, his father had been detained in his place and he had died in detention of a heart attack. On 30 September 1995, Mr. S.S. escaped from the LTTE barracks and travelled to Colombo.

2.2On 3 October 1995, he was arrested by police, during a routine check, for inability to show an identity card. He was questioned as to personal details and whether he was involved with LTTE, which he denied. He claims not to have been believed and to have been accused of spying for LTTE and travelling to Colombo to plan an attack. The next day he was released upon the intervention of an uncle and payment of a sum of money, subject to an obligation to report daily to police while staying in Colombo. The author states that he heard that the authorities intended to transfer him to Boosa prison, from which allegedly detainees never emerge alive. On 8 October 1995, Mr. S.S. left the country by air for the Netherlands.

2.3On 18 December 1995, Mr. S.S.’s request for asylum of 19 October 1995 was denied.  An appeal made to the Secretary of Justice on 23 January 1996 was rejected on 16 September 1996. The Secretary’s decision was appealed on 30 October 1996, but before the case was brought for hearing Mr. S.S. was informed that the decision of 16 September 1996 was withdrawn. A new decision would be taken after his case had been heard by an independent Advisory Commission on Aliens Affairs (Adviescommissie voor vreemdelingzaken).

2.4As to Mrs. S.A., also a member of the Tamil ethnic group, it is contended that in mid‑November 1995 she was also detained by LTTE in an attempt to determine her husband’s whereabouts and activities. While in the LTTE camp, she was forced to perform duties such as cooking and cleaning. After being taken to hospital at the end of March 1996, she escaped on 3 April 1996.

2.5On 17 June 1996, she was arrested by the Eelam People’s Revolutionary Liberation Front (EPRLF). She states that she was accused by a third party of collaboration with LTTE and was repeatedly questioned in this regard by EPRLF, but explained that she had performed forced labour for LTTE and why. She states she was not ill-treated but occasionally struck. She was handed over to the Sri Lankan authorities, held in custody and made to identify various alleged LTTE members at roadblocks. In mid-August 1996, she was able to escape after a convoy in which she was travelling struck a mine. She travelled to Colombo in late August and left the country by air for the Netherlands on 12 September 1996. It is alleged, without any details being provided, that because of her escape her uncle was killed by the authorities.

2.6On 18 November 1996, Mrs. S.A.’s request for asylum of 16 October 1996 was denied.  An appeal made to the Secretary of Justice on 31 December 1996 was rejected on 20 March 1997. The following day Mrs. S.A. was informed that the decision was withdrawn and that a new decision would be taken after hearing before the Advisory Commission.

2.7Mr. S.S. and Mrs. S.A. were both heard before the three-person Advisory Commission on 2 February 1998 which, in an extensive and fully reasoned judgement, unanimously recommended that the Secretary of Justice reject the authors’ appeal against the original denial of asylum. On 30 June 1998, the Secretary of Justice ruled that the authors were not eligible for refugee status and that they were in no real danger of being subjected to inhuman treatment. On 23 July 1998, the authors appealed this decision to The Hague District Court, which found the appeals unfounded on 25 January 1999.

The complaint

3.The authors contend that there are substantial grounds to believe that, if returned, they will be subjected to torture. They state that, as Tamils from the northern Tamil town of Jaffna, their presence in Colombo will give rise to suspicions on the part of the authorities of connections to LTTE. Having been suspected of such connections already, there is said to be nowhere safe in Sri Lanka where they could go. They contend that the authorities profoundly believe them to be opponents of the regime. Citing unspecified reports on the general situation in Sri Lanka by Amnesty International, UNHCR and other sources, the authors claim a real risk of being detained and tortured in the event of their return. Accordingly, their forced return is claimed to violate article 3 of the Convention.

Observations of the State party

4.1As to the admissibility of the communication, by letter of 28 October 1999, the State party accepts that there are no further avenues of appeal available against the decision of the District Court and that accordingly it is not aware of any objections to the admissibility of the communication.

4.2As to the merits, by letter of 18 February 2000, the State party argues that, taking into account the observations made by the authors during their asylum procedure viewed in the light of the general situation in Sri Lanka, there is no reason to assume that substantial grounds exist for believing that the authors would run a real and personal risk of being subjected to torture if returned. Accordingly it considers the communication ill-founded.

4.3The State party notes at the outset that under its law, due to a high population density and consequent problems, aliens are admitted only if its international obligations, essential Dutch interests or compelling humanitarian reasons require it. The process governing asylum is that the applicant is interviewed twice after submitting an application, by the Immigration and Naturalization Service (INS), if necessary with interpreters. Applicants may avail themselves of legal assistance at both interviews. Written reports are drawn up upon which the applicant may comment and submit corrections and additions. In reaching a decision, INS is assisted by country reports issued by the Ministry of Foreign Affairs, which draws on NGO sources and reports from Dutch missions. If an objection to a decision is rejected, the Advisory Commission is consulted in cases concerning a fear of persecution. The Commission hears the applicant, invites UNHCR to comment, and makes a recommendation to the Secretary of Justice. A final appeal from the Secretary’s decision is possible to the District Court (Arrondissementsrechtbank). Legal aid is available throughout the appeal procedure.

4.4The State party then goes on to set out its understanding of the general human rights situation in Sri Lanka, based on the relevant November 1998 country report issued by the Ministry of Foreign Affairs. The report notes areas of instability and human rights violations in the conflict areas, including brief detentions of many Tamils. However, it is the a view of the State party and other European Union member States that the situation in Government‑controlled

areas is not such that the return to these areas of persons whose cases have carefully been considered would, by definition, be irresponsible. The State party emphasizes that the Tamil human rights situation is taken into account by the Secretary of Justice in each individual case, as it is in the District Court’s reviews of those decisions.

4.5In a series of decisions, the District Court has held the Secretary to have acted “in all reasonableness” in judging that the overall situation in Sri Lanka no longer entails particular hardship for returnees. Regarding torture in particular, the Court has held that, even assuming severely under-reported data on torture cases in the Ministry’s report, there would be no significant grounds to conclude that the likelihood of torture of Tamils in Colombo who belong to “high risk” groups (such as young unidentified men) is so great in general that the group as a whole runs a substantial risk of being so exposed.

4.6The report notes that all relatively young Tamils who speak little Sinhalese and whose documents show them as coming from the north stand a chance of being held for questioning following an identity check. This is particularly so if one has recently arrived in Colombo from a war zone and has no identity documents or valid reason for being in Colombo, or has failed to register upon arrival. The majority are released within 48-72 hours once their identity is established and their reasons for being in Colombo have been explained. Those held longer may be subjected to rougher treatment, while those held for more than a week on suspicion of LTTE involvement face a higher risk of ill-treatment. Persons held for more than three months on firm evidence of involvement face a high risk of torture.

4.7Accordingly, the State party argues that the situation in Sri Lanka is not such that for Tamils in general (in particular young men), even if they are (or have recently come) from the north, substantial grounds exist for believing that they risk torture if returned. In this regard, the State party further points to the District Court’s consideration of the Ministry of Foreign Affairs country report and the wide variety of other sources, as well as the State party’s willingness to have the Committee assist in putting an end to violations of the Convention, which was demonstrated at the consideration of its last periodic report.

4.8Turning to the individual cases, the State party points out, in respect of Mr. S.S., that his arrest in Colombo was for failure to identify himself during a routine check. It is relevant that several others were arrested at the same time, and the arrest cannot be regarded as an act specifically directed against the author. Mr. S.S.’s subsequent release, apparently to do as he pleased, further speaks against the authorities taking a particular interest in him. As to the obligation to report daily, the State party refers to its Ministry of Foreign Affairs country report explaining that an obligation to report after release does not signify that the person should be classified as wanted by the police, nor does a failure to comply with this obligation automatically mean that the person’s name is placed on a list of serious suspects. In this case, the fact that Mr. S.S. was under an obligation to report would not put him at increased risk in the event of a return.

4.9Additionally, the State party notes that Mr. S.S’s statement that he was on a transfer list for Boosa prison is based entirely on uncorroborated suspicions. In any event, given that he was released after a day, it is implausible that his name was on that list. Furthermore, if the author believed that he was under close surveillance by the Sri Lankan authorities for suspected LTTE activities, it is hard to see why he was willing to take a considerable risk by leaving the country from Colombo airport. The author’s statements on the fate of his father also are inconsistent. Contrary to the account presented in the communication and at the first interview that his father had died in captivity of a heart attack, the author stated subsequent to the second interview that his father had been held at an earlier point by LTTE for a week and had been released upon suffering a minor heart attack.

4.10As to Mrs. S.A.’s position, the State party also argues that her account contains no indication that she would be at any greater risk than other Tamils upon returning to Sri Lanka. Regarding her arrest by and possible suspicion of involvement with LTTE, the State party points out that it is important that her work was performed under duress. She cannot be regarded as any kind of LTTE activist, and the activities she performed were in the service sphere. In the view of her background and experience, the State party does not consider it plausible that the Sri Lankan authorities would consider her a valuable informant, and in this respect she is no different from many other Sri Lankan Tamil who at some time had been detained in an LTTE camp.

4.11The author’s contention that the Sri Lankan authorities took an increased interest in her is also not supported by the fact that she left the country in the manner easiest to control, that is from Colombo airport. Regarding her allegation that her uncle was killed by the authorities on account of her escape, the State party points out that the contention is based on hearsay. No corroboration or evidence of any kind has been furnished of any link between her escape and his death. The State party points out that the District Court’s judgement of 25 January 1999 regarded Mrs. S.A.’s testimony as unreliable.

4.12The State party refers to the Committee’s jurisprudence that, even assuming the existence of a gross pattern of serious violations, additional grounds must be shown why an individual would personally be at risk of torture upon return to a country. Moreover, “substantial grounds” for apprehending such a fate must go beyond a mere possibility or suspicion of torture. Applying these tests to the instant case, the State party argues, regarding the inconsistencies outlined above, that the authors have failed to argue convincingly that there are substantial grounds for fearing a “foreseeable, real and personal risk” of torture in their cases. The authors have not satisfactorily established that they are at greater risk than other Tamils resident in Colombo. They have never put themselves forward as opponents of the Sri Lankan authorities, nor have they belonged to a political party or movement. Nor do their accounts suggest close relatives have been active, politically or otherwise, and have therefore attracted the attention of the Sri Lankan authorities. The activities that the authors profess to have performed under duress for LTTE are trivial in nature and extent.

Additional observations by the author

5.1By letter of 10 April 2000, the authors restate their contention that they have demonstrated substantial grounds for believing that they are at personal risk of torture, thereby putting the State party in breach of article 3 of the Convention in the event of a return.

5.2The authors claim that both parents left the country, separately, on false passports and therefore did not experience any problems in leaving. They contest the State party’s claim that the authorities impute no political involvement to them, stating that while they were not officially members of any group, both were suspected of connections to LTTE. Mr. S.S. was suspected of spying for LTTE and being in Colombo with ill intentions, while Mrs. S.A. was accused of working for LTTE and employed to identify LTTE members at roadblocks. In this regard, the authors contend that the Ministry of Foreign Affairs report ascribes a risk of being held for more than a week to Tamils suspected of having knowledge of LTTE.

5.3As to Mr. S.S.’s account, the authors reject the State party’s assertion that, upon Mr. S.S.’s release from police custody, he was free to do as he pleased and that they had no special interest in him; how could this be the case if he had to report to the police daily? The authors reject the State party’s classification, in the absence of proof, of Mr. S.S.’s placement on the Boosa transfer list as “implausible”, claiming that such a conclusion does not follow simply from being released after a day. Nor, claim the authors, had Mr. S.S.’s statements during the asylum procedure previously been doubted or considered implausible, nor had there been a request for further information on this aspect. There was therefore no reason to doubt this particular important statement. Similarly, simply because the account of the death of Mr. S.S.’s father was perhaps mistakenly transcribed did not make the statement unreliable.

5.4As to Mrs. S.A.’s account, the authors wish to underline that she had told the authorities that she had been forced to work for LTTE, and the State party’s statement that she cannot be regarded as an LTTE activist cannot be substantiated. The State party allegedly ignores her use as an informer to denounce alleged LTTE members. Concerning her uncle’s death, the authors claim that, while unable to produce a death certificate, there is no reason to doubt the information. The District Court’s judgement on witness credibility is no reason to doubt her statements, which the authors contend had never been doubted by the State party. Therefore, Mrs. S.A. ought to be given the benefit of the doubt on this issue.

Issues and proceedings before the Committee

6.1Before considering any claims contained in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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. The Committee also notes that all domestic remedies have been exhausted, and that all other admissibility requirements have been met. Accordingly, the Committee considers the communication admissible. Since both the State party and the author have provided observations on the merits of the communication, the Committee proceeds with the consideration of those merits.

6.2The issue before the Committee is whether the expulsion of the authors to Sri Lanka would violate the State party’s obligation under article 3 of the Convention not to expel or return 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.

6.3The Committee must decide, pursuant to article 3, paragraph 1, whether there are substantial grounds for believing that the authors would be in danger of being subjected to torture if returned to Sri Lanka. In reaching this decision, it must take into account all relevant considerations, pursuant to article 3, paragraph 2, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individuals concerned would be personally at risk of being subjected to torture. The existence of a consistent pattern of gross, flagrant or mass violations of human rights in the country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon returning to that country; there must be other grounds indicating that he or she would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be in danger of torture in his or her specific circumstances.

6.4The Committee recalls its general comment on the implementation of article 3, which reads:

“Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

6.5 In the present case, the Committee notes that the authors were provided with a comprehensive examination of their claims, with multiple opportunities to contribute to and correct the formal record, with an investigation by an independent advisory commission as well as judicial review. The Committee notes the attention drawn by the State party to the determinations of its various authorities of a number of inconsistencies and contradictions in the authors’ accounts, casting doubt on the veracity of the allegations. It also notes the explanations provided by the authors in that respect.

6.6 The Committee finds that the authors have failed to show significant grounds that the evaluation of the State party’s authorities was arbitrary or otherwise unreasonable, in concluding generally that the likelihood of torture of Tamils in Colombo who belong to a “high risk” group is not so great that the group as a whole runs a substantial risk of being so exposed. Nor have they demonstrated any inaccuracy in the State party’s conclusion that the situation in Sri Lanka is not such that for Tamils in general, even if they are from the north of the country, substantial grounds exist for believing that they risk torture if returned from abroad.

6.7As to the authors’ individual circumstances, the Committee considers that the respective detentions suffered by the authors do not distinguish the authors’ cases from those of many other Tamils having undergone similar experiences, and in particular they do not demonstrate that the respective detentions were accompanied by torture or other circumstances which would give rise to a real fear of torture in the future. In the circumstances, the Committee considers that the authors have failed to demonstrate, generally, that their membership of a particular group, and/or, specifically, that their individual circumstances give rise to a personal, real and foreseeable risk of being tortured if returned to Sri Lanka at this time.

6.8 The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the authors’ removal from the State party would not constitute a breach of article 3 of the Convention.

Notes

Communication No. 144/1999

Submitted by:A.M. (name deleted)

Alleged victim:The author

State party:Switzerland

Date of the communication:12 August 1999

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 14 November 2000,

Having concluded its consideration of communication No. 144/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available by the author of the communication and the State party,

Adopts the following decision:

1.1The author of the communication is Mr. A.M., born in 1974 and a citizen of Chad. He is currently residing in Switzerland, where he applied for asylum on 19 October 1998. His application having been turned down, he maintains that his forcible repatriation to Chad would constitute a violation by Switzerland of article 3 of the Convention against Torture.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee brought the communication to the attention of the State party on 4 October 1999. At the same time, the Committee, pursuant to rule 108, paragraph 9, of its rules of procedure, requested the State party not to expel the author to Chad while his communication was under consideration. In a submission dated 26 November 1999, the State party informed the Committee that measures had been taken to ensure that the author was not returned to Chad while his case was pending before the Committee.

The facts as submitted by the author

2.1The author has been trained in computing. He was an active member of the Chadian Human Rights League (LTDH), vice-president of one of the components of the Alliance Nationale de Résistance (ANR) and acting vice-president of the Union des Jeunes Révolutionnaires (UJR) for an 18‑month period during the president’s absence. After this period he was denounced to the security forces by agents who had infiltrated those bodies.

2.2On 16 September 1998, soldiers came to the author’s home during his absence. A police officer friend advised him to leave his house. After he had gone into hiding at his mother’s home, the soldiers returned to his house at night. This convinced him he should leave the country.

2.3The author then requested asylum in Switzerland but his request was turned down. Thereupon he was allegedly forced by the Swiss authorities to contact the Chadian Embassy in France in order to organize his return home. The embassy officials reportedly refused to assist him as they claimed they could not ensure his safety unless he expressly renounced the opposition movement and supported the existing regime.

Merits of the case

3.The author states that, as he is known to the security forces in Chad, he would run a real risk of ill-treatment if he returned there. He considers that it has been sufficiently established, in particular by the International Federation of Human Rights (FIDH), that human rights are being violated on a massive scale in Chad. Moreover, the Swiss Appeal Commission on Asylum Matters has itself recognized that members of LTDH, such as the author, are liable to have serious difficulties with the Chadian security forces. Three LTDH activists disappeared after they were arrested by Sudanese security forces in April 1998 and handed over to the Chadian authorities.

The State party’s observations on the admissibility and merits of the communication

4.1The State party has not contested the admissibility of the communication; in a letter dated 4 April 2000 it commented on its merits.

4.2The State party points out that a consistent pattern of flagrant or massive violations of human rights in a country does not in itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to that country. There must be other grounds indicating that the individual concerned would be personally at risk.

4.3In the present case, the State party considers that the risk alleged by the author is insufficiently substantiated. The author’s explanations of his political activities were general and vague. At the first hearing relating to his application for asylum, he was unable to provide the names of the organizations he had worked for. Moreover, the information he gave on LTDH was erroneous, and the attestation by the ANR representative which he produced did not indicate clearly what role he played in ANR. His membership card shows an enrolment date that does not correspond to the date he mentioned to the Swiss authorities. In addition, the State party possessed information to the effect that ANR was not known as an opposition movement in Chad.

4.4The State party also considers that the account the author has given is not plausible. With regard to his allegations that soldiers were looking for him, it is unthinkable that, if they had really wanted to apprehend him, they would not have gone to his place of work, given his statement that he continued going to work even after the soldiers had shown up at his home, or to his mother’s home.

4.5The State party also refers to the Committee’s general comment on article 3, to the effect that considerable weight will be given by the Committee to findings of fact that are made by organs of the State party, and stresses that the communication is only one page long.

4.6The State party points out that, contrary to the author’s claim, ANR has subsidiary bases in the Sudan and the Central African Republic, and its zone of operation is located in eastern Chad. This has been confirmed by documents produced by the author himself. The State party further maintains that the author claimed, on one occasion, that he had been prosecuted for having incited young people to rebel, and on another, that his prosecution was the result of the work of informants who had infiltrated ANR or the youth movement.

4.7The State party considers that the author’s statements regarding his behaviour after the alleged attempts to arrest him and his escape route are again implausible. At the hearings he claimed that he had gone to work during the three or four days preceding his departure, which seems highly unlikely for a person wanted by the police. Moreover, he took the longest and most complicated route across the whole of Chad and the Libyan Arab Jamahiriya on his way to Europe, whereas two of his brothers live in Cameroon and he himself had specialized in smuggling people into Nigeria.

4.8The State party further points out that the author has never claimed to have been subjected to torture in the past or claimed that relatives of his were harassed because of his activities; he has not pursued his political activity since his arrival in Switzerland.

4.9The State party points out that this communication is the first occasion when the author has referred to the Union des jeunes révolutionnaires and to his position as vice‑president. Until this point he had mentioned only the Chadian Revolutionary Party, the ANR “component” to which he referred having never been clearly identified. With regard to his membership in LTDH, the Swiss Appeal Commission on Asylum Matters clearly stated that, apart from the bogus membership card referred to above, his membership did not sufficiently establish that he ran the risk of being subjected to torture. With regard to the refusal of the Chadian Embassy in France to issue the necessary travel documents to him, the State party observes that the letter from the Embassy makes no mention of the fate awaiting him upon his return to Chad. It merely states that the Chadian authorities are unable to provide such documents. Moreover, if the author was really wanted by the Chadian authorities, they would most likely have encouraged him to return.

The author’s comments

5.1In a letter dated 20 May 2000, the author commented on the State party’s observations on the merits of the communication.

5.2The author first draws the Committee’s attention to the fact that the human rights situation in Chad has continued to deteriorate since 1994. He backs up this statement with various documents and press clippings. Having been a member of LTDH, ANR and UJR, he is convinced that, if arrested, he would be subjected to torture.

5.3With regard to the State party’s observation that he was unable at the first hearing to provide the names of the organizations he was working for, he points out that it was a particularly short hearing and he was not questioned on that point. The subsequent hearings were longer and more detailed, allowing the author to be more specific about his activities.

5.4As to the discrepancy between the date of joining LTDH shown on his membership card and the date he mentioned in his statements, the author claims that an error was made on the card and he was unable to have it corrected. He also states he had indeed named Mr. Ngare Ada as being acting president of the LTDH.

5.5As to ANR, the author is surprised that the State party has not heard that the organization is part of the opposition movement in Chad. He has provided several press clippings showing this to be the case, in particular articles referring to a round‑table meeting organized in Gabon in 1996. In addition, the author notes that there was an error in the ANR attestation in that he had not sought asylum in the Netherlands but had been unable to have the document corrected.

5.6Regarding the route he took when fleeing from Chad, the author believes that the route through the Libyan Arab Jamahiriya was less closely watched and the safest one for him to take. He points out that the border with Cameroon is much more closely guarded and there was a strong chance of his being recognized there.

5.7Lastly, the author does not recall having mentioned that he had gone to work after the soldiers had started looking for him. At that point he had been unable to take any practical steps himself, and it was his wife who had organized his escape from the country.

Issues and proceedings before the Committee

6.1Before considering any of the allegations in a communication, the Committee against Torture must decide whether or not the communication is admissible under article 22 of the Convention. It has ascertained, as it is required to do under article 22, paragraph 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. It notes also that all domestic remedies have been exhausted and that the State party has not contested the admissibility of the communication. It therefore considers that the communication is admissible. As both the State party and the author have provided observations on the merits of the communication, the Committee proceeds with the consideration of those merits.

6.2The issue before the Committee is whether the forced return of the author to Chad would violate the obligation of the State party under article 3 of the Convention not to expel or return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

6.3The Committee must decide, pursuant to article 3, paragraph 1, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to Chad. In reaching that decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not in itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to the country. There must be other grounds indicating that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

6.4The Committee recalls its general comment on the implementation of article 3, which reads: “Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

6.5In the present case, the Committee notes the State party’s observations to the effect that the author’s statements concerning the alleged risks of torture are vague and general, at times implausible, at times inaccurate and at times inconsistent.

6.6.The Committee finds that the author has not mentioned any forms of persecution to which he was subjected in his country of origin. He was never ill-treated or tortured; nor was he ever questioned or detained by the security forces.

6.7The Committee also finds that the author has not produced conclusive evidence of, nor demonstrated convincingly his membership of, or activities in, the Chadian Human Rights League, the Alliance nationale de résistance or the Union des jeunes révolutionnaires.

6.8The Committee therefore finds that it has not been given enough evidence by the author to conclude that the latter would run a personal, real and foreseeable risk of being tortured if returned to his country of origin.

6.9The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, therefore concludes that the decision of the State party to return the author to Chad does not constitute a breach of article 3 of the Convention.

Communication No. 147/1999

Submitted by:Y.S. (name deleted)

[represented by counsel]

Alleged victim:The author

State party:Switzerland

Date of the communication:7 October 1999

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 14 November 2000,

Having concluded its consideration of communication No. 147/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available by the author of the communication and the State party,

Adopts the following decision:

1.1The author of the communication is Mr. Y.S., a Turkish citizen of Kurdish origin born on 7 June 1953 and currently residing in Switzerland, where he applied for asylum on 18 June 1998. His application having been turned down, he maintains that his forcible repatriation to Turkey would constitute a violation by Switzerland of article 3 of the Convention against Torture. He is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 21 October 1999. At the same time, the State party was requested, pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, not to expel the author to Turkey while his communication was under consideration by the Committee. In a submission dated 14 December 1999, the State party informed the Committee that steps had been taken to ensure that the author was not returned to Turkey while his case was pending before the Committee.

The facts as submitted by the author

2.1The author and Ms. S., Turkish nationals of Kurdish origin, married in 1977 and then lived in their home in Elazig, a town in south‑eastern Turkey. At that time the author owned two shops selling electrical appliances, one in Elazig and the other in Pertek, a district of the city of Tunceli where he had grown up. In 1991, he closed the shop in Pertek, and at the end of 1994 closed the shop in Elazig because of constant harassment by the police.

2.2Since the 1980s, the author had been an active supporter of the leftist Kurdish party known as PSK (Socialist Party of Kurdistan), which published a newspaper entitled Oezg.rl.k.Yolu. The author would read and sell this paper, the name of which was often changed because it was regularly banned. At the same time, he was an activist in the Turkish Human Rights Association (IHD).

2.3On 21 March 1993, two IHD representatives in Elazig were murdered. Their bodies were found in the street bearing obvious signs of torture: their ears had been cut off and their eyes put out. The author attended their funerals.

2.4Until 1994 the author was repeatedly harassed by the police because of his opinions and political activities. In 1994, the author’s shop was raided by the police, who found a copy of the above‑mentioned newspaper and other PSK publications. The author was forced to board a minibus and taken blindfolded to an unknown place. For three days he was severely tortured in an attempt to make him give information to the police and to become an unofficial collaborator. Despite the torture methods used, he refused to give any information or to become an informal collaborator. After three days he was released. He continued to work in his shops despite constant police harassment. At the end of 1994, he decided to close the shop in Elazig.

2.5From then on, the author and his family had no fixed abode, living in three different places: in Kizilkale, where the author’s parents have a farm; in Mersin, where he owns another apartment; and in Elazig, in a dwelling owned by a friend which they rented a few months after fleeing.

2.6One night in April 1996, the police broke into the rented apartment in Elazig where the author and his family were sleeping. The author was beaten and taken to a place where he was physically and psychologically tortured for two and a half days. He then agreed to work for the police, who said that he could begin working in two weeks’ time. On being released, he returned to his home, collected his family and hid them at a friend’s home until they left for Istanbul. While his family members were with this friend, the author’s eldest son, aged 17, was arrested by the police while on his way to see his grandfather and was held in custody. The police informed him that he would not be released unless his father came to fetch him in person. On learning of this, the author and his family left for Istanbul, where they stayed at the home of one of his brothers.

2.7On 4 June 1996, the author, his wife and another son caught a plane and, via Milan, arrived illegally in Switzerland on 5 June 1996. All of them were in possession of their passports.

2.8On the day of their arrival in Switzerland, the author and his family applied for asylum. Their application was rejected by the Federal Office for Refugees on 27 May 1998. The author argues in particular that, in support of its decision refusing him refugee status, the Federal Office for Refugees maintained that he had given contradictory information concerning his place of residence between 1994 and 1996. The author lodged an appeal against this decision, which was rejected on 3 August 1999 on the grounds that his pleas were unconvincing. In this appeal, he requested a second medical examination, which was refused.

2.9The author states that he arrived in Switzerland traumatized by the torture he had undergone. He began a course of medical treatment on 9 July 1996 and he was also advised to obtain psychological treatment. On 8 April 1997, the doctors sent the Federal Office for Refugees a report stating that the author should spend three weeks in hospital because of pains in his spinal column. On 18 April 1997, a psychiatric report requested by the Federal Office for Refugees found that he was suffering from post‑traumatic stress disorder.

The merits of the complaint

3.The author states that if he were returned to Turkey he would be arrested, would again be tortured and might be killed in an extrajudicial execution.

The State party’s observations

4.1In a note verbale dated 14 December 1999, the State party declares that it does not contest the admissibility of the communication.

4.2As to the merits of the communication, the State party explains that the Swiss Appeal Commission on Asylum Matters considered that the author’s statements concerning the period from 1994 until his second arrest in 1996 were not credible since he had no longer been in Elazig as from 1994. Moreover, it is difficult to believe that the author would have hidden at the home of one of his friends, T.K., since that person was particularly vulnerable politically and his telephone was being tapped by the Turkish security forces. In the opinion of the Federal Office for Refugees, there was no causal link between the author’s possible arrest in 1993 and his departure from Turkey in 1996.

4.3Furthermore, the State party emphasizes that the Swiss Appeal Commission on Asylum Matters, unlike the Federal Office for Refugees, considers that the allegations concerning the author’s arrest and subsequent torture are also lacking in credibility. It was highly doubtful that the author would have been able to continue his business activities for a period of 18 months after having been arrested and tortured, given the effectiveness of the repression by the Turkish security forces.

4.4Similarly, the State party points out that the medical examination of the author simply accepted at face value the author’s explanation of the causes of the disturbances from which he was suffering, without questioning them. For that reason the Swiss Appeal Commission on Asylum Matters refused to allow a second medical examination.

4.5In the view of the State party, the arguments presented by the author in his communication add nothing to those presented to the Swiss authorities. On the contrary, in his

communication he claims that he was tortured not in 1993 but in 1994, whereas in the Swiss internal proceedings he repeated on several occasions that the events did take place in 1993, in July at the latest.

4.6In general, the State party entirely endorses the grounds adduced by the Swiss Appeal Commission on Asylum Matters in support of its decision to reject the author’s application for asylum.

4.7In the light of article 3 of the Convention, the State party points out that, in accordance with the Committee’s jurisprudence, this provision provides no protection to the author, who simply maintains that he is afraid that he will be arrested on his return to his country.

4.8The State party questions the veracity of certain facts to which the author has referred only in his communication, such as the name and address of the friend at whose home he claims to have sought refuge. Furthermore, he gave the Committee this information on a confidential basis and on condition that the Swiss authorities took no action to verify its authenticity. However, the State party could also have obtained this information in the same conditions.

4.9The State party points out that the inquiries undertaken by the Swiss Embassy in Ankara have shown that the author was not wanted by the police. His name does not appear in any police records in relation to possible criminal or political activities. Moreover, it was not until investigations had been carried out by the Embassy that the author was obliged to admit that he owned a home in Mersin, a fact which he had initially concealed from the Swiss authorities.

4.10On the question of the medical certificates, the State party considers that they are not sufficient to eliminate the contradictions and implausibilities contained in the author’s statements. The Swiss Appeal Commission was by no means convinced that the post‑traumatic disturbances from which he claimed to be suffering were the consequence of the acts of torture which he alleges. In this context, it must be emphasized that the person who conducted the medical examination was both the therapist and the person who prepared the expert report.

4.11With the exception of the alleged arrest of his eldest son in April 1996, the State party considers that the author has never demonstrated that members of his family or members of his wife’s family have been sought or intimidated by the Turkish authorities, let alone arrested or tortured. This fact leads to the view that the author and his family would therefore be in no danger of being arrested or tortured in the event of their return to Turkey.

4.12Similarly, the author has never demonstrated that he has engaged in activities which might have been beneficial to PSK. He was not a member of this party but merely a sympathizer and, even in this capacity, he acknowledged that he had never distributed brochures for the party.

4.13Lastly, the State party considers that the author’s explanations concerning the manner of his departure from Turkey with his family are open to question. The Swiss Appeal Commission on Asylum Matters considered it unlikely that a person wanted by the police would have been able to leave Turkey from Istanbul airport without let or hindrance. In view of the extremely strict security checks carried out at this airport, it is likely that a false or forged passport would have been detected. Moreover, the State party considers implausible the contention that the passports were in the possession of a third party.

4.14The State party accordingly considers that the author’s statements do not permit the conclusion that there are substantial grounds for believing, in accordance with article 3, paragraph 1, of the Convention, that the author would be in danger of being subjected to torture if the decision to return him to Turkey were carried out.

The author’s comments

5.1In a communication dated 14 July 2000 the author commented on the State party’s observations.

5.2Concerning the date of the first arrest, he states that his counsel admits having himself made a mistake over the dates, probably because the author, too, confused them at the time of the second interrogation. Nevertheless, while making it clear that this arrest occurred in 1993, the author points out that it was not questioned by the Swiss authorities.

5.3As to his work within the party, the author wishes to make it clear that, at his second interview, he stated that he shared the party’s ideas and supported the party, but that he did not play an active part in it. In addition, he makes it clear that he played a limited role in distributing the party newspaper. Lastly, he recalls that he was arrested in 1993 because party newspapers had been found in his apartment and he had been accused of having distributed pamphlets.

5.4The author recalls that, in his appeal to the Swiss Appeal Commission on Asylum Matters, he was prepared to give his friend’s name and address on condition that that information was not used by the Swiss Embassy in order to carry out inquiries into their relationship.

5.5Concerning the inquiries carried out by the Swiss authorities in Turkey, the author considers that it is impossible for a Turkish security organization to give such information to Switzerland. As to the apartment in Mersin, the author did not consider that information to be sufficiently important. Furthermore, it was not true that they had moved completely from Elazig to go and live in Mersin, as the Swiss authorities maintained. Consequently, it could not be said that it was impossible for the author to be arrested in Elazig.

5.6As to the veracity of the medical examination conducted by Dr. M., if the Federal Office for Refugees had not contested the veracity of the torture in 1993, the author wonders why the possibility that he was still traumatized by that torture should be ruled out, when it was known that he had been forced to remain standing in freezing water and that his fingers had been squeezed with pincers. Furthermore, Dr. M.’s description of the report as an “expert report” was motivated by the request made by the Federal Office for Refugees. However, the State party had provided no information as to the form that the report should take. Similarly, the psychiatric diagnosis of post-traumatic stress disorder does not depend on measurable objective signs. In any judicial procedure, if the medical report is considered to be unsatisfactory, a second report must be requested.

5.7In the opinion of the State party, the author’s brothers have not been persecuted in Istanbul and Izmir because of him. Moreover, the State party considers that the author and his family could return to Turkey without any problem. However, the arrest of the author’s eldest son is not contested. In this connection, the author maintains that his brothers and sisters live in Istanbul and that he had little contact with them; furthermore, they were too far from Elazig to be able to give any information about him. As to the author’s eldest son, he has not lived in Elazig since the time the author arrived in Switzerland. The year the author left, the son moved to Istanbul to live with his family.

5.8As to the State party’s argument that the author has ceased to work for PSK since his arrival in Switzerland, the author states that PSK is very active in Switzerland, notably in Lausanne and Basel, but not in Bern where he lives. Nevertheless, the author regularly attends its meetings.

5.9Concerning the State party’s doubts that the author had lived with a friend who worked for PKK, the author maintains that his friend had completely concealed his activities from the

security forces. The security forces had, however, visited Mr. K. in order to prevent him from participating in certain activities. Mr. K. was quite old and died in 1999.

Issues and proceedings before the Committee

6.1Before considering any of the allegations in a communication, the Committee against Torture must decide whether or not the communication is admissible under article 22 of the Convention. It has ascertained, as it is required to do under article 22, paragraph 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. It also notes that all domestic remedies have been exhausted and that the State party has not contested the admissibility of the communication. It therefore considers that the communication is admissible. As both the State party and the author have provided observations on the merits of the communication, the Committee proceeds with the consideration of those merits.

6.2The issue before the Committee is whether the return of the author to Turkey would violate the obligation of the State party under article 3 of the Convention not to expel or return a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

6.3The Committee must decide, pursuant to article 3, paragraph 1, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture if he was returned to Turkey. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to the country. There must be other grounds indicating that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

6.4The Committee recalls its general comment on the implementation of article 3, which reads: “Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable” (A/53/44, annex IX, para. 6).

6.5The Committee notes that the medical examination undergone by the author indicated the presence of post-traumatic stress.

6.6However, on the basis of information submitted by the author, the Committee notes that the events which prompted his departure from Turkey date back to 1993 and appear to be linked in particular to his relations with PSK. The purpose of the arrests and torture which he says he underwent in 1993 and 1996 seemed to be to elicit information or to induce him to collaborate with the security forces. On the other hand, there is no indication that since his departure from Turkey in 1996 the members of his family, and notably his son, have been sought or intimidated by the Turkish authorities. Moreover, the Committee takes note of the information furnished by the Swiss Embassy in Ankara, which establishes that the Turkish police have no file on the author.

6.7In these circumstances, the Committee considers that the author has not furnished sufficient evidence to justify his fear of arrest and torture on his return.

6.8The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, considers that the decision of the State party to return the author to Turkey does not constitute a breach of article 3 of the Convention.

Communication No. 149/1999

Submitted by:A.S. (name withheld)

[represented by counsel]

Alleged victim:The author

State party:Sweden

Date of communication:6 November 1999

The Committeeagainst Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 24 November 2000,

Having concluded its consideration of communication No. 149/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1The author of the communication is A.S., an Iranian citizen currently residing with her son in Sweden, where she is seeking refugee status. The author and her son arrived in Sweden on 23 December 1997 and applied for asylum on 29 December 1997. Ms. S. claims that she would risk torture and execution upon return to the Islamic Republic of Iran and that her forced return to that country would therefore constitute a violation by Sweden of article 3 of the Convention. The author is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted communication No. 149/1999 to the State party on 12 November 1999. Pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, the State party was requested not to expel the author to the Islamic Republic of Iran pending consideration of her case by the Committee. In a submission dated 12 January 2000 the State party informed the Committee that the author would not be expelled to her country of origin while her communication was under consideration by the Committee.

The facts as submitted by the author

2.1The author submits that she has never been politically active in the Islamic Republic of Iran. In 1981, her husband, who was a high-ranking officer in the Iranian Air Force, was killed during training in circumstances that remain unclear; it has never been possible to determine whether his death was an accident. According to the author, she and her husband belonged to secular-minded families opposed to the regime of the mullahs.

2.2In 1991, the Government of the Islamic Republic of Iran declared the author’s late husband a martyr. The author states that martyrdom is an issue of utmost importance for the Shia Muslims in that country. All families of martyrs are supported and supervised by a foundation, the Bonyad-e Shahid, the Committee of Martyrs, which constitutes a powerful authority in Iranian society. Thus, while the author and her two sons’ material living conditions and status rose considerably, she had to submit to the rigid rules of Islamic society even more conscientiously than before. One of the aims of Bonyad-e Shahid was to convince the martyrs’ widows to remarry, which the author refused to do.

2.3At the end of 1996 one of the leaders of the Bonyad-e Shahid, the high-ranking Ayatollah Rahimian, finally forced the author to marry him by threatening to harm her and her children, the younger of whom is handicapped. The Ayatollah was a powerful man with the law on his side. The author claims that she was forced into a so-called sighe or mutah marriage, which is a short-term marriage, in the present case stipulated for a period of one and a half years, and is recognized legally only by Shia Muslims. The author was not expected to live with her sighe husband, but to be at his disposal for sexual services whenever required.

2.4In 1997, the author met and fell in love with a Christian man. The two met in secret, since Muslim women are not allowed to have relationships with Christians. One night, when the author could not find a taxi, the man drove her home in his car. At a roadblock they were stopped by the Pasdaran (Iranian Revolutionary Guards), who searched the car. When it became clear that the man was Christian and the author a martyr’s widow, both were taken into custody at Ozghol police station in the Lavison district of Tehran. According to the author, she has not seen the man since, but claims that since her arrival in Sweden she has learned that he confessed under torture to adultery and was imprisoned and sentenced to death by stoning.

2.5The author says that she was harshly questioned by the Zeinab sisters, the female equivalents of the Pasdaran who investigate women suspected of “un-Islamic behaviour”, and was informed that her case had been transmitted to the Revolutionary Court. When it was discovered that the author was not only a martyr’s widow but also the sighe wife of a powerful ayatollah, the Pasdaran contacted him. The author was taken to the ayatollah’s home where she was severely beaten by him for five or six hours. After two days the author was allowed to leave and the ayatollah used his influence to stop the case being sent to the Revolutionary Court.

2.6The author states that prior to these events she had, after certain difficulties obtained a visa to visit her sister-in-law in Sweden. The trip was to take place the day after she left the home of the ayatollah. According to the information submitted, the author had planned to continue from Sweden to Canada where she and her lover hoped to be able to emigrate since he had family there, including a son. She left Iran with her younger son on a valid passport and the visa previously obtained, without difficulty.

2.7The author and her son arrived in Sweden on 23 December 1997 and applied for asylum on 29 December 1997. The Swedish Immigration Board rejected the author’s asylum claim on 13 July 1998. On 29 October 1999, the Aliens Appeal Board dismissed her appeal.

2.8The author submits that since her departure from Iran she has been sentenced to death by stoning for adultery. Her sister-in-law in Sweden has been contacted by the ayatollah who told her that the author had been convicted. She was also told that the authorities had found films and photographs of the couple in the Christian man’s apartment, which had been used as evidence.

2.9The author draws the attention of the Committee to a report from the Swedish Embassy in Iran which states that chapter I of the Iranian hudud law “deals with adultery, including whoring, and incest, satisfactory evidence of which is a confession repeated four times or testimony by four righteous men with the alternative of three men and two women, all of whom must be eyewitnesses. Capital punishment follows in cases of incest and other specified cases, e.g. when the adulterer is a non-Muslim and the abused a Muslim woman. Stoning is called for when the adulterer is married”. The report further underlines that even if these strict rules of evidence are not met, the author can still be sentenced to death under the criminal law, where the rules of evidence are more flexible.

2.10The author further draws the attention of the Committee to documentation submitted to the Swedish immigration authorities to support her claim, including a certificate testifying to her status as the wife of a martyr. She also includes a medical certificate from Kungälvs Psychiatric Hospital indicating that she suffers from anxiety, insomnia, suicidal thoughts and a strong fear for her personal safety if she were returned to Iran. The certificate states that the author has symptoms of post-traumatic stress syndrome combined with clinical depression.

The complaint

3.1The author claims that there exist substantial grounds to believe that she would be subjected to torture if she were returned to the Islamic Republic of Iran. Her forced return would therefore constitute a violation by Sweden of article 3 of the Convention. Furthermore, the author submits that there is a consistent pattern of gross human rights violations in the Islamic Republic of Iran, circumstances that should be taken into account when deciding on expulsion.

The State party’s observations on admissibility and merits

4.1In its submission of 24 January 2000, the State party submits that it is not aware of the present matter having been or being the object of any other procedure of international investigation or settlement. As to the admissibility of the communication, the State party further explains that according to the Swedish Aliens Act, the author may at any time lodge a new application for a residence permit with the Aliens Appeal Board, based on new factual circumstances which have not previously been examined. Finally, the State party contends that the communication is inadmissible as incompatible with the provisions of the Convention, and lacking the necessary substantiation.

4.2As to the merits of the communication, the State party explains that when determining whether article 3 of the Convention applies, the following considerations are relevant: (a) the general situation of human rights in the receiving country, although the existence of a consistent pattern of gross, flagrant or mass violations of human rights is not in itself determinative; and (b) the personal risk of the individual concerned of being subjected to torture in the country to which he/she would be returned.

4.3The State party is aware of human rights violations taking place in the Islamic Republic of Iran, including extrajudicial and summary executions, disappearances, as well as widespread use of torture and other degrading treatment.

4.4As regards its assessment of whether or not the author would be personally at risk of being subjected to torture if returned to the Islamic Republic of Iran, the State party draws the attention of the Committee to the fact that several of the provisions of the Swedish Aliens Act reflect the same principle as the one laid down in article 3, paragraph 1 of the Convention. The State party recalls the jurisprudence of the Committee according to which, for the purposes of article 3, the individual concerned must face a foreseeable, real and personal risk of being tortured in the country to which he or she is returned. The State party further refers to the Committee’s general comment on the implementation of article 3 of the Convention which states that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion, although the risk does not have to meet the test of being highly probable.

4.5The State party recalls that the author of the present communication has not belonged to any political organization and has not been politically active in her home country. The author asserts that she has been sentenced to stoning by a Revolutionary Court in the Islamic Republic of Iran, a judgement which she maintains would be enforced if she were to be sent back there. The State party states that it relies on the evaluation of the facts and evidence and the assessment of the author’s credibility made by the Swedish Immigration Board and the Aliens Appeal Board upon their examination of the author’s claim.

4.6In its decision of 13 July 1998, the Swedish Immigration Board noted that apart from giving the names of her sighe husband and her Christian friend, the author had in several respects failed to submit verifiable information such as telephone numbers, addresses and names of her Christian friend’s family members. The Immigration Board found it unlikely that the author claimed to have no knowledge of her Christian friend’s exact home address and noted in this context that the author did not even want to submit her own home address in the Islamic Republic of Iran.

4.7The Immigration Board further noted that the author during the initial inquiry had stated that a Pasdaran friend had given her photographs of people in the Evin prison who had been tortured, which she had requested “out of curiosity” and which she gave to her Christian friend although she “didn’t know” what he wanted them for. The Immigration Board judged that the information provided by the author in relation to this incident lacked credibility and seemed tailored so as not to reveal verifiable details.

4.8Finally, the Immigration Board questioned the credibility of the author’s account of her marriage to the ayatollah, her relationship with the Christian man and the problems that had emerged as a result of it.

4.9In its decision of 29 October 1999, the Aliens Appeal Board agreed with the assessment of the Immigration Board. The Board further referred to the travaux préparatoires of the 1989 Aliens Act which state that the assessment of an asylum-seeker’s claim should be based on the applicant’s statements if his/her assertions of persecution seem plausible and the actual facts cannot be elucidated. The Board noted that the author had chosen to base her application for asylum on her own statements only and that she had not submitted any written evidence in support of her claim, despite the fact that she had been told of the importance of doing so.

4.10In addition to the decisions of the Immigration Board and the Aliens Appeal Board, the State party refers to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, according to which “the applicant should: (i) (t)ell the truth and assist the examiner to the full in establishing the facts of his case, [and] (ii) (m)ake an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence”. According to the UNHCR Handbook, the applicant should be given the benefit of the doubt, but only when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.

4.11In the present case, the State party first reminds the Committee that the author has refused to provide verifiable information and that her reasons for doing so, i.e. that she was forbidden by her friend to do so and that new tenants are now occupying her apartment in Tehran, are not plausible.

4.12Second, the State party maintains that it seems unlikely that the author, solely out of curiosity, would want to have photographs of tortured people in her possession. It seems even more unlikely that she would hand over such photographs to someone she had known only for a few months. Further, the State party notes that although the author claims that the authorities in the Islamic Republic of Iran are in possession of a film showing her last meeting with her friend, no additional information has been provided by the author on this issue.

4.13A third reason for doubting the author’s credibility is that the author has not submitted any judgement or other evidence to support her claim that she has been sentenced for adultery by a Revolutionary Court. In addition, the author has not given any explanation as to why her sister-in-law was not able to obtain a copy of the Revolutionary Court’s judgement when she visited the Islamic Republic of Iran. Further, the State party notes that according to information available to it, the Revolutionary Courts in the Islamic Republic of Iran have jurisdiction over political and religious crimes, but not over crimes such as adultery. Hudud crimes, i.e. crimes against God, including adultery, are dealt with by ordinary courts.

4.14The State party further draws to the attention of the Committee that the author left Tehran without any problems only a few days after the incident which allegedly led to her detention, which would indicate that she was of no interest to the Islamic Republic of Iranian authorities at the moment of her departure. In addition, the author has claimed that she handed over her passport to her brother‑in-law upon arrival in Sweden. However, the State party notes that her passport number is indicated on her asylum application which she submitted six days later. The explanation for this given by the author’s counsel during the national asylum procedure, i.e. that the number might have been available from an earlier visit in Sweden by the author in 1996, is unlikely. There is nothing in the author’s file that indicates that documents concerning her earlier visit to Sweden were available during the asylum application procedure.

4.15The State party also draws the Committee’s attention to the fact that the author has not cited any medical report in support of her statement that she was severely beaten by Ayatollah Rahimian only a few days before her arrival in Sweden. In addition, according to information received by the State party, the head of the Bonyad-e Shahid was, until April 1999, Hojatolleslam Mohammad Rahimian, but he does not hold the title of ayatollah.

4.16Finally, the State party adds that when the author’s sister-in-law applied for asylum in Sweden in 1987, she stated that her brother, the author’s late husband, had died in a flying accident in 1981 caused by a technical fault. Ten years later, the author’s brother-in-law and his family also applied for asylum and claimed that the author’s husband had been killed for being critical of the regime and that he and his family would therefore be in danger of persecution if returned to the Islamic Republic of Iran. The brother-in-law and his family were returned to that country in November 1999 and the State party submits that it has not received any information indicating that they have been mistreated.

4.17On the basis of the above, the State party maintains that the author’s credibility can be questioned, that she has not presented any evidence in support of her claim and that she should therefore not be given the benefit of the doubt. In conclusion, the State party considers that the enforcement of the expulsion order to the Islamic Republic of Iran would, under the present circumstances, not constitute a violation of article 3 of the Convention.

Counsel’s comments

5.1In her submissions dated 4 February and 6 March 2000, counsel disputes the arguments of the State party regarding the failure of the author to submit written evidence. Counsel states that the author has provided the only written evidence she could possibly obtain, i.e. her identity papers and documentation showing that she is the widow of a martyr. Counsel states that the ayatollah conducted the sighe or mutah wedding himself with no witnesses or written contract. As to her failure to provide the immigration authorities with a written court verdict, counsel submits that the author only has second-hand information about the verdict, as it was passed after her departure from the Islamic Republic of Iran. She cannot, therefore, submit a written verdict. Counsel further disputes that the author’s sister-in-law should have been able to obtain a copy of the verdict while visiting the Islamic Republic of Iran. She further states that the author’s sister‑in-law long ago ended all contacts with the author because she strongly resents the fact that the author has had a relationship with any man after the death of her husband.

5.2Counsel acknowledges that crimes such as adultery are handled by ordinary courts. However, she draws the attention of the Committee to the fact that the jurisdictional rules are not as strict in the Islamic Republic of Iran as for example in the State party and that the prosecuting judge can choose the court. In addition, for a martyr’s widow to ride alone with a Christian man in his car would probably fall under the heading of “un‑Islamic behaviour” and as such come under the jurisdiction of the Revolutionary Court. Even if this were not the case, counsel reminds the Committee that the author has only been informed that she has been sentenced to death by stoning by a court. Not being a lawyer, and in view of what she was told during her interrogation by the Zeinab sisters, the author assumes that the sentence was handed down by the Revolutionary Court and this assumption should not be taken as a reason for questioning the general veracity of her claim.

5.3Counsel states that the author has given credible explanations for not being able or not wishing to provide the Swedish authorities with certain addresses and telephone numbers. Firstly, she had promised for the sake of security not to give her lover’s telephone number to anyone and does not wish to break her promise even at the request of the immigration authorities. The Christian man always contacted the author on her mobile phone which he had given her for that purpose alone. The author left the mobile phone in the Islamic Republic of Iran when she departed and as she never called her number herself or gave it to anyone, she cannot remember it. Further, counsel states that the address which is indicated on the author’s visa application used to be her home address, but the author has repeatedly explained that new tenants are now living there and that she does not want to subject them to any difficulties caused by inquiries from the Swedish authorities. Finally, counsel stresses that the author has given detailed information about the neighbourhood, Aghdasiye, where her lover lived and that she has repeatedly underlined that she never knew the exact address since she always went to her secret meetings first by taxi to Meydon-e-Nobonyad where she was picked up by a car that brought her to the Christian man’s home. Finally, all the author ever knew about the Christian man’s relatives was that he had one sister and one brother living in the United Kingdom and a son from a previous marriage living in Canada. She never met them and never asked their names.

5.4Counsel underlines that the fact that the Swedish authorities do not find the author’s explanations credible is a result of speculation based on the supposition that all people behave and think according to Swedish or Western standards. The authorities do not take into account the prevailing cautiousness in the Islamic Republic of Iran with respect to giving personal information, particularly to public officials.

5.5With reference to the photographs of victims of torture which the author claims to have handed over to her lover, counsel submits that this fact in no way diminishes the author’s credibility. The couple were engaged in a serious relationship and intended to marry and there was no reason for the author not to pass on such photos to a man in whom she had total confidence. Further, counsel underlines that the author has never argued that her handling of the photographs in question supports or has anything to do with her asylum claim.

5.6Counsel notes that the State party observes that the author has not cited any medical certificate attesting to injuries resulting from the beatings she was subjected to by her sighe husband. Counsel reminds the Committee that the author left the Islamic Republic of Iran the following day and that her main preoccupation was to arrive safely in Sweden. Counsel further states that most Iranian women are used to violence by men and they do not or cannot expect the legal system to protect them, despite the positive changes which have recently taken place in the Islamic Republic of Iran in this respect. As an example, counsel states that an Iranian woman wishing to report a rape must be examined by the courts’ own doctors as certificates by general doctors are not accepted by courts.

5.7With reference to the fact that the author’s passport number was given in her asylum application although she had claimed to have disposed of her passport upon arrival in Sweden, counsel states that there is no indication on the asylum application that the author’s passport has been seized by the Immigration Board officer, which is the rule in order to secure enforcement of possible expulsion; this fact seems to support the author’s version of events. In addition, the author has maintained that when filing her application she merely had to state her name, all other necessary details having appeared on a computer screen. This information has been corroborated by the Immigration Board registration officer who received the author’s asylum application and who told counsel that, in recent years, a person granted a tourist visa is registered in a computer database, containing all available information, including passport numbers. The author had been granted a tourist visa for Sweden twice in recent years, so her account was absolutely correct.

5.8Counsel notes that the State party has confirmed that the author’s sighe husband was the head of the Bonyad-e Shahid, which should support the author’s claim; he was generally referred to as “Ayatollah”, even though his title was Hojatolleslam. Counsel reminds the Committee that there are only some 10 real ayatollahs in the Islamic Republic of Iran. The great majority of mullahs are of the rank of hojatolleslam. However, mullahs who have gained power, particularly political power, are often referred to as Ayatollah out of courtesy, an illustrative example being Ayatollah Khamenei whose office demanded the rank of an ayatollah but who was in fact only hojatolleslam when he was appointed.

5.9With reference to the State party’s argument that the author left the Islamic Republic of Iran without difficulty, counsel points out that this is consistent with the author’s version of the events leading to her flight. She has maintained that at the time of her departure she was not yet of interest to the Iranian authorities since her sighe husband had suppressed the Pasdaran report to the Revolutionary Court.

5.10Finally, counsel states that what the author’s dead husband’s relatives have stated about the circumstances surrounding his death has no impact on the author’s case or her credibility. It should be noted that the author herself has never stated that her husband was assassinated by the regime, but only that she had doubts about the circumstances pertaining to his death.

5.11In support of counsel’s arguments she submits a medical certificate dated 22 November 1999 from a senior psychiatrist at Sahlgrenska Hospital, where the author was taken after an attempted suicide. The attempt was made after the Swedish police had taken her and her son from a reception centre for asylum-seekers to a detention centre to ensure the execution of her expulsion. The diagnosis made was deep depression combined with contemplation of suicide.

5.12Counsel further encloses a letter dated 27 December 1999 from the leading Swedish expert on Islam, Professor Jan Hjärpe, who confirms the author’s account concerning the institution of sighe or mutah marriages and the legal sanctions provided for in cases of adultery.

5.13Counsel draws the attention of the Committee to the fact that the immigration authorities in examining the author’s case have not considered the situation of women in the Islamic Republic of Iran, existing legislation and its application, or the values of the Iranian society. Counsel states that the argumentation of the authorities, based almost exclusively on the author’s failure to submit certain verifiable information, seems to be a pretext for refusing the author’s application. In conclusion, counsel submits that according to the information provided by the author, there exist substantial grounds to believe that the author would be subjected to torture if returned to the Islamic Republic of Iran and that the author has provided reasonable explanations for why she has not been able to or not wished to furnish certain details.

Additional comments submitted by the State party

6.1In its submission dated 2 May 2000, the State party contends that the Swedish Immigration Board and the Aliens Appeal Board have ensured a thorough investigation of the author’s case. It reminds the Committee that during the asylum procedure, the author has been repeatedly reminded of the importance of submitting verifiable information, but that she has chosen not to do so. The State party does not find the explanations given hereto convincing, reiterates that the burden of proof in principle rests with the author and maintains that the author’s credibility can be questioned.

6.2Finally, the State party draws the attention of the Committee to the fact that the author first alleged that she had been sentenced to death for adultery during an initial interview held with her in May 1998. The State party submits that the author thus has had ample time to present a written judgement or other evidence to support that claim.

Additional information from the State party and counsel, requested by the Committee

7.1Having taken note of the submissions made by both the author and the State party regarding the merits of the case, the Committee, on 19 and 20 June 2000, requested further information from the two parties.

Submissions by counsel

7.2In her submission of 1 September 2000, counsel confirms previous information given regarding: (a) the nature of sighe or mutah marriages and the fact that witnesses are not necessary, nor registration before a judge if the partners themselves are capable of conducting the ceremony correctly; (b) the activities of Bonyad-e Shahid, affirming that martyrs’ widows are presented, in listings and photo albums, for temporary marriages to its employees and directors. Counsel supports the information given with letters from, inter alia, the Association of Iranian Political Prisoners in Exile (AIPP), the Support Committee for Women in the Islamic Republic of Iran and Professor Said Mahmoodi, Professor of International Law at the University of Stockholm.

7.3With regard to the alleged death sentence against the author, counsel submits that despite attempts by AIPP, it has not been possible to find any evidence that the author’s Christian lover had been imprisoned and that they both have been sentenced to death by stoning for adultery. AIPP, as well as other sources, maintain that such information is not possible to get if the prison, the court or the case numbers is not known.

7.4Counsel submits letters and information given by experts in Islamic law confirming that a sighe wife is bound by the rules regarding adultery and that she is prohibited from having a sexual relationship with any man other than her sighe husband. Adultery with a Christian man bears the sanction of stoning to death. Counsel further submits that the law in theory requires either four righteous witnesses or a confession to the sexual act for stoning to be ordered, but that

the author’s sighe husband, being a powerful man in society, would not have difficulties finding persons willing to testify. According to international human rights organizations, the eyewitness condition is rarely respected and stoning for adultery is still frequently practised in the Islamic Republic of Iran, despite recent reforms in the country.

7.5Reference and further clarifications were made with regard to telephone calls received by the author’s sister-in-law (see para. 2.8). The author’s previous lawyer had told Swedish authorities that the sister-in-law in Sweden had been contacted by Hojatolleslam Rahimian who told her that the author had been found guilty. Counsel has since been in contact with the sister‑in-law directly and states that the correct version of events was that the sister-in-law, shortly after the author’s arrival in Sweden, was contacted by a man in rage who did not give his name but wanted to know the author’s whereabouts in Sweden. The man was aggressive and knew all the details of the author’s past and said that she had no right to leave the Islamic Republic of Iran. The sister‑in-law further states that she never attempted to verify the existence of a court judgement when she visited the Islamic Republic of Iran.

7.6With reference to the Committee’s request for additional information, counsel states that the author’s older son, born in 1980, tried to seek asylum in Sweden from Denmark in March 2000. In accordance with the Dublin Convention, after a short interview, he was sent back to Denmark where he is still waiting to be interrogated by Danish immigration authorities. Since his case had not yet been examined by the Danish authorities, counsel requested Amnesty International to interview him.

7.7The records of the interview confirm statements made by the author regarding her sighe marriage and of her being called to the Bonyad-e Shahid office several times a week. The son also states that when his mother left she had told him that he had to leave school and hide with close relatives of hers in Baghistan. He received private teaching to become a veterinary surgeon and subsequently enrolled in university. On 25 January 2000 he was summoned to the university information office by the intelligence service, Harasar, from where two men took him to the Bonyad-e Shahid office in Tehran where he was detained, interrogated, threatened and beaten. He claims that the interrogators wanted to know his mother’s whereabouts and that they threatened to keep him and beat him until his mother came “crawling on all fours” and then they would “carry out her sentence”. The author’s son claims that it was during the interrogation that he fully realized his mother’s situation, although he had not spoken to her since she left the country.

7.8In conclusion, counsel maintains that although it has not been possible to obtain direct written evidence, for the reasons given above, the chain of circumstantial evidence is of such a nature that there can be no reason to doubt the author’s credibility. Reference is further made to a recent judgement of the European Court of Human Rights dated 11 July 2000, regarding an Iranian woman asylum-seeker who allegedly had committed adultery and who feared death by stoning, whipping or flogging if returned. As in the case of the author no written evidence existed in the form of a court judgement, but the Court stated that it “is not persuaded that the situation in the applicant’s country of origin has evolved to the extent that adulterous behaviour is no longer considered a reprehensible affront to Islamic law. It has taken judicial notice of

recent surveys of the current situation in the Islamic Republic of Iran and notes that punishment of adultery by stoning still remains on the statute book and may be resorted to by authorities.” The Court ruled that to expel the applicant would be a violation of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Submissions by the State party

7.9The State party made additional submissions on 19 September and 19 October 2000. With reference to the Committee’s request for additional information, the State party reiterates its view that the burden is on the author to present an arguable case. It maintains that the author has not given any evidence in support of her claim and therefore there are serious reasons to doubt the veracity of those claims.

7.10With regard to the author’s alleged sighe marriage, the State party confirms that the law in the Islamic Republic of Iran allows for such temporary forms of marriage. It further argues that although sighe marriages are not recorded on identification documents, such contracts should, according to reliable sources, contain a precise statement of the time-period involved and be registered by a competent authority. In practice, a religious authority may approve the marriage and issue a certificate. Given that the author claims that her sighe or mutah marriage was conducted by Hojatolleslam Rahimian himself and that no contract was signed, the State party has doubts as to whether the author entered into a legally valid marriage.

7.11The State party points out that counsel in her last submissions to the Committee has included certificates and other information which have not previously been presented to the Swedish immigration authorities. As the new information seems to be invoked in order to prove the existence of sighe marriages in the Islamic Republic of Iran, the State party emphasizes that it does not question this fact, nor the existence of the Bonyad-e Shahid, but, inter alia, the author’s credibility in respect of her personal claims of having entered in such a marriage. The author’s credibility is further diminished by the inconsistent information given relating to phone calls received by the author’s sister-in-law.

7.12In addition, even if the Committee does accept that the author has entered into such a marriage, the State party asserts that this in itself would not constitute substantial grounds for believing that the author would be in danger of being tortured or killed if returned to the Islamic Republic of Iran.

7.13It is further submitted that according to the Swedish Embassy in Tehran, it is not possible for the Embassy to inquire whether a competent family court, rather than the Revolutionary Court, has issued a judgement regarding the author. However, the author should, according to the Embassy, by proxy be able to obtain a copy of the judgement if it exists, or at least obtain the name of the court and the case number. The State party further submits that only a married person can be convicted of adultery; it therefore seems unlikely that the author’s lover would have been sentenced to death as claimed.

7.14In addition, the State party claims that neither reports from the United States Department of State nor from Amnesty International confirm the assertion by counsel that stoning is frequently practised in the Islamic Republic of Iran.

7.15With regard to the judgement by the European Court referred to by counsel, the State party points out that in that case the applicant had been granted refugee status by UNHCR and the European Court had relied on UNHCR’s conclusions as to the credibility of the applicant and the veracity of her account. In the present case, two competent national authorities have scrutinized the author’s case and found it not to be credible.

7.16Finally, with regard to the information given by the author’s son, currently residing in Denmark where he is seeking asylum, the State party underlines that this information is new and has not been presented to the national authorities. According to the State party, information submitted at a very late stage of the proceedings should be treated with the greatest caution. It further emphasizes a number of contradictory points in the newly submitted evidence: (a) during the son’s interrogation by the Swedish Board of Immigration no mention was made of any court judgement or death sentence, information which, in the State party’s view, would have been relevant in the circumstances; (b) the son gave contradictory answers to the question of whether he possessed a passport. The State party also finds it unlikely that the author was not aware of, and has never invoked, the harassment to which her son was allegedly subjected after her departure from the Islamic Republic of Iran.

Issues and proceedings before the Committee

8.1Before considering any claims contained in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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. The Committee is further of the opinion that all available domestic remedies have been exhausted. The Committee finds that no further obstacles to the admissibility of the communication exist. Since both the State party and the author have provided observations on the merits of the communication, the Committee proceeds immediately with the considerations of those merits.

8.2The issue before the Committee is whether the forced return of the author to the Islamic Republic of Iran would violate the obligation of Sweden under article 3 of the Convention not to expel or to return 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.

8.3The Committee must decide, pursuant to article 3, paragraph 1, of the Convention, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to the Islamic Republic of Iran. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his

return to that country; additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.

8.4From the information submitted by the author, the Committee notes that she is the widow of a martyr and as such supported and supervised by the Bonyad-e Shahid Committee of Martyrs. It is also noted that the author claims that she was forced into a sighe or mutah marriage and to have committed and been sentenced to stoning for adultery. Although treating the recent testimony of the author’s son, seeking asylum in Denmark, with utmost caution, the Committee is nevertheless of the view that the information given further corroborates the account given by the author.

8.5The Committee notes that the State party questions the author’s credibility primarily because of her failure to submit verifiable information and refers in this context to international standards, i.e. the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, according to which an asylum-seeker has an obligation to make an effort to support his/her statements by any available evidence and to give a satisfactory explanation for any lack of evidence.

8.6The Committee draws the attention of the parties to its general comment on the implementation of article 3 of the Convention in the context of article 22, adopted on 21 November 1997, according to which the burden to present an arguable case is on the author of a communication. The Committee notes the State party’s position that the author has not fulfilled her obligation to submit the verifiable information that would enable her to enjoy the benefit of the doubt. However, the Committee is of the view that the author has submitted sufficient details regarding her sighe or mutah marriage and alleged arrest, such as names of persons, their positions, dates, addresses, name of police station, etc., that could have, and to a certain extent have been, verified by the Swedish immigration authorities, to shift the burden of proof.In this context the Committee is of the view that the State party has not made sufficient efforts to determine whether there are substantial grounds for believing that the author would be in danger of being subjected to torture.

8.7The State party does not dispute that gross, flagrant or mass violations of human rights have been committed in the Islamic Republic of Iran. The Committee notes, inter alia, the report of the Special Representative of the Commission on Human Rights on the situation of human rights in the Islamic Republic of Iran (E/CN.4/2000/35) of 18 January 2000, which indicates that although significant progress is being made in that country with regard to the status of women in sectors like education and training, “little progress is being made with regard to remaining systematic barriers to equality” and for “the removal of patriarchal attitudes in society”. It is further noted that the report, and numerous reports of non-governmental organizations, confirm that married women have recently been sentenced to death by stoning for adultery.

9.Considering that the author’s account of events is consistent with the Committee’s knowledge about the present human rights situation in the Islamic Republic of Iran, and that the author has given plausible explanations for her failure or inability to provide certain details which might have been of relevance to the case, the Committee is of the view that, in the prevailing circumstances, the State party has an obligation, in accordance with article 3 of the Convention, to refrain from forcibly returning the author to the Islamic Republic of Iran or to any other country where she runs a risk of being expelled or returned to the Islamic Republic of Iran.

10.Pursuant to rule 111, paragraph 5, of its rules of procedure, the Committee would wish to receive, within 90 days, information on any relevant measures taken by the State party in accordance with the Committee’s present views.

Note

Communication No. 150/1999

Submitted by :S.L. (name withheld)

[represented by counsel]

Alleged victim:The author

State party:Sweden

Date of communication:5 November 1999

The Committeeagainst Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 11 May 2001,

Having concluded its consideration of communication No. 150/1999, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1.1The author of the communication is Mr. S.L., an Iranian citizen currently residing in Sweden, where he is seeking refugee status. The author arrived in Sweden on 8 February 1998 and applied for asylum the following day. Mr. S.L. claims that he would risk torture upon return to the Islamic Republic of Iran and that his forced return to that country would therefore constitute a violation by Sweden of article 3 of the Convention. The author is represented by counsel.

1.2In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted communication No. 150/1999 to the State party on 18 November 1999. Pursuant to rule 108, paragraph 9, of the Committee’s rules of procedure, the State party was requested not to expel the author to the Islamic Republic of Iran pending the consideration of his case by the Committee. In a submission dated 21 December 1999 the State party informed the Committee that the author would not be expelled to his country of origin while his communication was under consideration by the Committee.

The facts as submitted by the author

2.1According to the author, he has never been politically active in the Islamic Republic of Iran. He was a respected Muslim of firm conviction who studied agronomics at Tehran University and who was financially well off from his own poultry farming business. In December 1988, having left university after a few years of study, the author was drafted and was eventually, at his own request, placed with the Sepah-Pasdaran in Tehran.

2.2The author explains that in the early 1990s the Pasdaran (Iranian Revolutionary Guards) and the police were joined together, coming under the Ministry of the Interior. At the same time, a new security force body, the Sepah-Pasdaran, was created directly under the Supreme Commander, Ayatollah Khamenei, with the task to “protect the system, defend the values of Islam and the revolution”. There are also counter-intelligence units within the Sepah-Pasdaran with responsibility for internal control and surveillance of the rest of the Sepah-Pasdaran. The author was placed in the Tehran office of one of these units, where he soon gained everyone’s confidence and was appointed personal secretary to the commander of the office. As such he had access to all files and all cupboards, except one to which only the commander had the keys.

2.3One day, the commander accidentally left his keys in the office when he left for a meeting. Out of curiosity, the author opened the “special cupboard” and found personal files containing information about immoral and criminal acts committed by well-known, highly respected individuals considered, not least by the author, as pillars of society. In his submission to the Committee, the author gives detailed information, including names of the individuals concerned and the nature of the crimes supposedly committed, including rape, illegal trade in arms, drug dealing and embezzlement.

2.4The author took copies of the files and hid them in his home. He thought that if the allegations were forwarded to the right quarters, the individuals in question would be investigated, sentenced and punished properly. In February/March 1990, the author gave anonymous information to the Sepah-Pasdaran operational group, which resulted in a raid and the discovery of illegal weapons and ammunition. The author continued to submit anonymous information to the operational group which resulted in further raids. However, due to the influential status of the individuals involved, the discoveries were covered up and no arrests were made. Convinced that the allegations were true, the author also sent copies of the files to the office of Ayatollah Khamenei.

2.5According to the author, the Sepah-Pasdaran must have become suspicious of him, because in April/May 1991, shortly after having finished his military service, the author was arrested and held in one of Sepah-Pasdaran’s secret prisons, the so called “No. 59”, for six months. According to one of the medical statements supporting the author’s claim, the author was subjected to torture and ill-treatment. He was handcuffed behind his knees, and with a stick placed between his upper arms and thighs he was hung up to rotate, sometimes for hours. The author also claims that he received beatings with batons on the kneecaps and elbows. Although he was interrogated about the secret reports, the author denied everything, knowing that a confession would be the end of him. After six months, in November/December 1991, the author was transferred to a hospital for medical treatment and thereafter released on bail.

2.6The author claims that after his release he was kept under close surveillance by the Sepah-Pasdaran. He was eventually asked to spy for the Sepah-Pasdaran on some of the leaders of the State-controlled farmers’ cooperative in which he was active. He was also supposed to go with the cooperative to international fairs and report on the leaders’ behaviour and contacts abroad and for this purpose the author had a passport issued. The author tried to keep the Sepah‑Pasdaran satisfied by providing some information, but of limited interest. In August 1995, the Sepah-Pasdaran arrested him again and he was first brought to the Evin prison.

The author had to leave samples of his handwriting, presumably to compare it with the writing on one of the envelopes in which he had sent anonymous information. According to the allegations, the author was again tortured and kept in solitary confinement for several months.

2.7In June 1996 the author was brought to trial, convicted and sentenced to one year’s imprisonment and a fine for check fraud, a verdict which the author presented to the Swedish immigration authorities. According to the author, the charges were fabricated. He was not represented by a lawyer during the trial and did not know any of the alleged plaintiffs. After the verdict, the author was transferred to Qasar prison, where he claims that conditions improved and although he was subjected to ill-treatment he was never tortured.

2.8The author claims that he escaped from prison on 22 June 1997. His wife and a number of close friends arranged the flight, by reporting him to the prosecutor on false grounds. As a consequence the author was summoned and transported, together with two other prisoners, to the court in Kosh district, accompanied by two police officers and three soldiers. The guards were bribed by the author’s wife and friends to allow him to escape.

2.9After his escape, the author remained in hiding with friends in Karach. An influential friend of the author’s family, with business contacts in Germany, arranged for the author to receive a tourist visa. The author already had a passport which he had been issued in 1991 (see para. 2.6). With the help of a smuggler the author left the Islamic Republic of Iran illegally via the Kurdish mountains to Turkey. From Ankara he went legally by air to Germany on his tourist visa and was thereafter taken by car to Sweden via Denmark.

2.10The author entered Sweden on 8 February 1998 and applied for asylum the following day. The immigration authorities ordered his expulsion to Germany, in accordance with the Dublin Convention, but before the execution of the expulsion, the author escaped to Norway. From Norway he was returned to Sweden. He was again expelled from Sweden to Germany on 9 November 1998, but subsequently returned to Sweden due to the fact that he had been outside European Union territory since his initial arrival on German territory.

2.11The Swedish Immigration Board rejected the author’s asylum claim on 13 September 1999. The author’s appeal was rejected by the Aliens Appeal Board on 4 November 1999.

The complaint

3.1In view of his past experiences of imprisonment and torture, the author claims that there exist substantial grounds to believe that he would be subjected to torture if he were to be returned to the Islamic Republic of Iran. His forced return would therefore constitute a violation by Sweden of article 3 of the Convention.

3.2In support of the claim, counsel provides several medical certificates. One of the certificates is from the Centre for Torture and Trauma Survivors in Stockholm, stating that the author suffers from a post-traumatic stress disorder and that both medical and psychological evidence indicate that the author has been subjected to torture with typical psychological effects as a result. In addition, a certificate from a psychiatrist states that the “circumstances, together with [the author’s] whole attitude and general appearance, indicate very strongly ... that he for a long time has been subjected to severe abuses and torture” and that the author is considered “completely trustworthy”.

The State party’s observations on admissibility and merits

4.1By submission of 21 December 1999, the State party informs the Committee that, following the Committee’s request under rule 108, paragraph 9, of its rules of procedure, the Swedish Immigration Board decided to stay the expulsion order against the author while his communication is under consideration by the Committee.

4.2By submission of 2 March 2000, the State party informs the Committee that it does not raise any objection as to the admissibility of the communication. It confirms the author’s account of the internal remedies exhausted.

4.3With regard to the general situation of human rights in the Islamic Republic of Iran, the State party notes that although there are at present signs that Iranian society is undergoing changes that may entail improvements in the human rights field, the country is still reported to be a major abuser of human rights.

4.4The State party further states that it refrains from making an evaluation of its own regarding whether or not the author has substantiated his claim that he would risk being tortured if expelled, and leaves it to the discretion of the Committee to determine whether the case reveals a violation of article 3 of the Convention. It notes that in its jurisprudence, the Committee has observed that past torture is one of the elements to be taken into account when examining a claim under article 3 of the Convention but that the aim of the Committee’s examination is to determine whether the author would at present be at risk of being subjected to torture if returned. The State party does not wish to question that the author has spent some time in prison, nor that he was at that time subjected to ill-treatment. Without making an assessment of its own, the State party reminds the Committee of the opinions put forward by the Swedish Immigration Board and the Aliens Appeal Board.

4.5The Swedish Immigration Board rejected the author’s application for asylum on 13 September 1999, on the basis that the circumstances invoked by the author lacked credibility. The credibility of the author was questioned on the following grounds: (i) the fact that the author had not presented his Iranian passport or any other travel documents to the Swedish authorities; (ii) that the author had not applied for asylum either in Germany or in Denmark, indicating that he could not have regarded his situation in his home country as particularly serious; (iii) the Board found it difficult to believe that the Iranian security police wanted someone they were suspicious of to act as a spy for them; (iv) the circumstances regarding the author’s escape from prison were not considered credible; and finally (v) the Board questioned the authenticity of the judgement regarding check fraud submitted by the author.

4.6The Aliens Appeals Board dismissed the author’s appeal on 4 November 1999. The Board found no reason to question the author’s identity, nor did it question that the author had been sentenced by a court in Tehran for check fraud in accordance with the submitted judgement, which the Swedish Embassy in Tehran had had examined by legal experts who concluded it was authentic. The Aliens Appeals Board does not rule out that the author had been deprived of his liberty while under suspicion for check fraud, nor that he had served a prison sentence for the said crime, or that he had been ill-treated during his imprisonment. In all other aspects, the Aliens Appeals Board questioned the credibility of the author on the same grounds as the Swedish Immigration Board and in the light of the submitted medical certificate which indicates that the author seems completely trustworthy.

4.7The Swedish Embassy in Tehran further noted that check fraud cases are very common in the Islamic Republic of Iran and that at present there appears to be thousands of such cases pending before the courts in Tehran. The Embassy does not rule out the possibility that on the whole, the author has submitted reliable information in support of his reluctance to return to his country of origin. With regard to the author’s passport, the Embassy states that the fact that a person has legal problems with the Iranian authorities does not necessarily mean that he is refused a passport, whereas he would normally not obtain an exit permit.

4.8Finally, the State party points out that the author claims that the judgement concerning check fraud was presented to him in February or March 1996, after he had spent six months in prison. However, it appears from the judgement itself that it was given on 6 June 1996. The Aliens Appeals Board held the view that the author may have been found guilty of check fraud and served a prison sentence for that crime.

Counsel’s comments

5.1Counsel notes the immigration authorities’ reference to the fact that the author had not presented his travel documents and that it therefore cannot be excluded that the author had destroyed his Iranian passport and that his exit from the Islamic Republic of Iran was legal. She further notes that the authorities do not find it credible that the author was issued a passport while under suspicion by the Iranian secret police. With regard to the first matter, counsel submits that rejection by the immigration authorities with the indication that the author may have destroyed his travel documents in bad faith is a common phrase automatically used to question the general veracity of a claim. With regard to the second, counsel reminds the Committee that the author has given a plausible explanation of why he was granted a passport despite being under surveillance (see para. 2.6).

5.2With reference to the immigration authorities’ argument that it does not seem likely that the secret police would use a person under surveillance to spy for them, counsel submits that it is common knowledge that in dictatorships the secret police do force persons over whom they have a hold to work for them in different ways.

5.3Counsel notes the contradictions with regard to the Swedish Immigration Board’s and the Aliens Appeals Board’s argumentation concerning the judgement for check fraud presented by the author. One of the main reasons for the Immigration Board’s doubts as to the credibility of the author was that it questioned the authenticity of the judgement. When it was ascertained, through the Swedish Embassy in Tehran, that the judgement was in fact authentic, the Aliens Appeals Board in turn used the authenticity of the document as an argument against the author, indicating that the author had been imprisoned for check fraud and had not been persecuted on political grounds. Counsel submits that the use of false charges in suppressive States in general, and in the Islamic Republic of Iran in particular, is common to dispose of persons seen as a threat against the State and at the same time create an image of a legitimate rule of law. The Committee’s attention is drawn to the fact that the author’s account in this respect was considered not credible by the Aliens Appeals Board without giving any reason therefor. Counsel further points out that for the author, it was obvious that he had been judged on false charges, which was why he presented the verdict to the Swedish immigration authorities in the first place. No person would present a real verdict and expect to be granted asylum on that ground alone.

5.4Counsel recalls that the Aliens Appeals Board does not question the fact that the author had been imprisoned in the Islamic Republic of Iran, nor that he was at that time subjected to torture and ill-treatment.

5.5With regard to the author’s escape, counsel points out that the author has given such a detailed description of the events that there should be no doubt about its veracity. Details were also given to the examining psychiatrist who in his medical certificate judged the author to be completely trustworthy.

5.6The authorities question why the author did not apply for asylum in Germany if, as claimed, he feared persecution by the Iranian authorities. Counsel points out that the author has given a clear and plausible explanation of why he did not do so. The author would not have been able to get his passport renewed or a tourist visa for Germany if it had not been for a close and influential friend of the author’s family with business contacts in Germany. The author was therefore determined not to seek asylum in Germany since doing so would likely compromise the friend. The author, like everyone else, was aware that immigration authorities in Germany and elsewhere take note of the sponsor of a person who seeks asylum after having been granted a tourist visa.

5.7Finally, counsel points out that the transcripts of the one and only interrogation of the author by the Swedish immigration authorities is of poor quality. The interpretation and translation of the author’s account are of a low standard and even the Swedish text is sometimes incomprehensible. According to the transcripts, the author did not seem to be allowed to tell his story and was constantly interrupted by provocative questions. The torture is not questioned. As an example of the poor translation, counsel points to an instance where “prosecutor” was replaced by “Chairman of the Court”, thereby leading the Swedish Immigration Board initially to doubt the authenticity of the judgement.

Issues and proceedings before the Committee

6.1Before considering any claims contained in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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. The Committee is further of the opinion that all available domestic remedies have been exhausted. The Committee finds that no further

obstacles to the admissibility of the communication exist. Since both the State party and the author have provided observations on the merits of the communication, the Committee proceeds immediately with the consideration of those merits.

6.2The issue before the Committee is whether the forced return of the author to the Islamic Republic of Iran would violate the obligation of Sweden under article 3 of the Convention not to expel or to return 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.

6.3The Committee must decide, pursuant to article 3, paragraph 1, of the Convention, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to Iran. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country; additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of a consistent pattern of gross violations of human rights does not mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.

6.4The Committee has taken note of the arguments presented by the author and the State party and is of the opinion that it has not been given enough evidence by the author to conclude that the latter would run a personal, real and foreseeable risk of being tortured if returned to his country of origin.

7.The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, considers that the author of the communication has not substantiated his claim that he would be subjected to torture upon return to the Islamic Republic of Iran and therefore concludes that the author’s removal to the Islamic Republic of Iran would not constitute a breach by the State party under article 3 of the Convention.

B. Decisions

Communication No. 160/2000

Submitted by:P.R. (name deleted)

[represented by counsel]

Alleged victim:The author

State party:Spain

Date of the communication:9 February 2000

The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 23 November 2000,

Adopts the following decision:

1.The author of the communication is Mr. P.R., a Spanish national who claims to be the victim of violations by Spain of articles 12 and 13 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is represented by counsel. The Committee transmitted the communication to the State party, in accordance with article 22, paragraph 3, of the Convention, on 11 April 2000.

The facts as submitted by the author

2.1The author claims that on the night of 29 October 1997, at about 3 a.m., as he was walking with two companions in Victoria Street in Murcia, he approached two local police officers to ask whether they knew of a bar that was open so that they could buy a few drinks. When one of the officers replied that it was not a proper hour for drinking, the author turned to his companions and made a disrespectful remark about the police. The two policemen immediately bore down on the author, punching him and hitting him with their truncheons, knocking him down and continuing to beat him on the ground. Other local police officers were called to the scene by the first two and joined in the beating. They then handcuffed him in a very painful way and took him to the police station in Correos Street, from which he was later released. The injuries suffered by the author required medical attention at the Molina de Segura emergency unit.

2.2On 31 October 1997, the author filed a complaint against the police officers with Investigating Court No. 1, which was on duty at the time, but no investigation was conducted.

2.3The police officers who allegedly mounted the attack brought charges against the author that very day, 29 October 1997, accusing him of insulting officers of the law. In their charge, they claimed that at 4.55 a.m. the author of the communication had approached them to ask whether there were any bars open in the neighbourhood. The police officers had answered that there were none open at that hour and the author had responded with insults. They had asked for identification but he had refused, insulting them again. They had thereupon placed the author, who had offered resistance, in the police vehicle and had driven him to the police station for identification.

2.4Investigating Court No. 6 of Murcia, before which the charges were brought, instituted a minor-offence procedure and summoned the parties to the oral proceedings on 25 November 1997. During the proceedings, the author stated that he had filed a complaint against the police officers with the court on duty. The judge thereupon suspended the proceedings and, on 27 November, requested Investigating Court No. 1 to transmit the author’s complaint on the grounds that it had jurisdiction to undertake the relevant investigation. The judge finally pronounced judgement on 17 March 1998. He characterized the language used by the author to the police officers as a minor insult to an officer of the law and sentenced him to a fine and payment of the costs of the proceedings. The judgement mentioned that the author and the proposed witnesses had not appeared before the court and stated in one paragraph that the author had claimed to have been assaulted on the way to the police station. It stated in another paragraph, however, that, since neither the Office of the Public Prosecutor nor the author or his representative had brought charges during the proceedings and since no evidence had been adduced in support of the complaint, the police officers should be acquitted.

2.5The author appealed against the judgement to the Provincial High Court on 21 April 1998, requesting that the judgement should be set aside and that the facts he had

reported to the court on duty should be investigated as a possible offence as defined in articles 173 to 177 of the Criminal Code under the heading “Torture and other offences against the person”. The author argued that the investigation would have required the opening of preliminary proceedings and the taking of statements from the alleged perpetrators, the victim and the witnesses. He further argued that his alleged offence should have been tried together with the facts stated in his complaint, which were on no account prosecutable by a minor-offence procedure. Lastly, he claimed that the failure to investigate constituted a breach of article 12 of the Convention.

2.6The Provincial High Court dismissed the appeal on 17 June 1998. According to the judgement, counsel for the author, at the oral proceedings on 25 November 1997, had merely requested that the complaint filed by his client should be joined to that before the court. The judge had acceded to that request, suspended the proceedings and set a new date for their resumption. The author had failed to appear for those proceedings without due reason. As he had thus failed to support his complaint at the appointed time, the judge had had no alternative but to reject it in the absence of evidence for the prosecution. The judgement concluded that the judicial proceedings had been terminated owing to the party’s inaction.

2.7The author rejects the arguments set forth in the judgement. He claims that he did attend the proceedings, although he arrived a few minutes late, and that the facts reported in his complaint should have been investigated automatically even if none of the parties had raised them in the proceedings, since they constituted circumstantial evidence of criminal conduct (a complaint having been filed and evidence submitted).

2.8On 3 July 1998, the author filed an amparo application with the Constitutional Court, alleging violations of the following provisions: article 15 of the Constitution (right to physical integrity) and the corresponding articles of the Convention; the provision of article 24 of the Constitution concerning the right to an appropriate legal procedure, since the facts reported could not be dealt with in minor-offence proceedings but in ordinary criminal proceedings for more serious offences, which would not be prosecuted by an investigating judge; the provision of article 24 of the Constitution concerning the right to adversarial proceedings, since, despite the fact that the judgement by the Provincial High Court indicated that the Office of the Public Prosecutor objected to the appeal and requested confirmation of the initial judgement, the author had never been informed of the objection filed by the prosecutor and was thus denied the opportunity to challenge it; the jurisprudence of the Committee against Torture in respect of article 13 of the Convention.

2.9The Constitutional Court declared the appeal inadmissible in a resolution of 19 January 2000, stating, inter alia, that the contested judgements were constitutionally sound.  It further stated that the author’s procedural conduct had been the decisive factor because he had simply requested that his complaint against the officers of the Local Police should be joined to the subject matter of the proceedings, but without bringing charges against them. The author’s claim that his right to physical integrity had been violated was therefore completely unfounded.

The complaint

3.1The author claims that the facts amount to a violation by Spain of article 12 of the Convention because the judicial authorities failed to conduct a prompt and impartial investigation despite the fact that there were reasonable grounds to believe that acts of torture or ill-treatment had been committed. Neither the author nor the witnesses nor the doctor who had testified to the assault was questioned. Moreover, the procedure envisaged in domestic legislation for the crime of torture had not been followed.

3.2The author does not share the view of the judicial authorities that it was his inaction that determined the outcome of the legal proceedings. He considers that there was a violation of article 13 of the Convention, according to which it is enough for the victim simply to bring the facts to the attention of an authority of the State. Article 13 does not require the formal lodging of a complaint (a step that had been taken in his case) or an express statement of intent to institute and sustain a criminal action arising from the offence.

The State party’s observations concerning admissibility

4.In its statement of 8 June 2000, the State party notes that the author did not indicate at any stage that the procedure for serious offences was to be applied to his complaint. On the contrary, at the minor-offence proceedings his counsel requested that his complaint against the police should be joined thereto. That means that he consented to his case being dealt with in the context of minor-offence proceedings. Court No. 6 summoned the author to attend the minor-offence proceedings “as complainant and defendant”. However, neither he nor his counsel turned up for the proceedings at which all the evidence and findings were to be presented. Responsibility for failure to support a complaint and to present a defence against charges therefore lies with the person who failed to appear. Following his failure to attend, the author neither entered a plea nor submitted a document challenging the minor-offence procedure. It was only on appeal that the author complained, for the first time, of the failure to apply the procedure for serious offences to his complaint. But that charge was inconsistent with his previous conduct and was also untimely, since it was not filed in time or in due form, although the author had enjoyed the assistance of counsel from the outset. The communication should therefore be declared inadmissible on the ground of failure to exhaust domestic remedies.

The author’s comments

5.1The author reiterates the fact that there was never a prompt, serious and impartial investigation as required by the Convention, although he had lodged a complaint with the judicial authorities together with a medical report confirming that he had received multiple blows and bruises. He explains that the Spanish Criminal Code makes clear distinctions in its definitions between the serious offence of torture (art. 174) and the minor offence of assault (art. 617). In particular, the offence of torture is punishable by a prison term of two to six years and disqualification of the official for two to four years, while the offence of assault is punishable only by detention for three to six weekends or a fine. According to the author, for the purposes of the Convention the serious, prompt and impartial investigation required should be conducted in respect of the offence of torture and not that of assault. Otherwise, the protection against torture that the Convention seeks to guarantee would be ineffective. He also notes that the procedure for serious offences is different from that for minor offences. In the former case, the investigation is carried out by investigating judges and the prosecution by criminal courts or provincial high courts, while cases involving minor offences are decided by the investigating judges themselves.

5.2The author further states that the judgement of the Provincial High Court completely disregarded the Convention despite the fact that he had invoked it in his appeal. Moreover, the argument on which the judgement is based is incompatible with the Convention, which does not require the investigation to be conducted by the victim himself, especially when he has submitted a complaint, a document which, according to the Committee’s jurisprudence, is not even necessary for the conduct of a prompt and impartial investigation. Lastly, the author contests the State party’s argument about the untimeliness of the complaint, claiming that the appeal was an appropriate means of remedying the lack of a serious, prompt and impartial investigation. The Provincial High Court demonstrated a lack of impartiality by distorting the legal framework applicable to a criminal act which the organs of State are required ex officio to prosecute. The author concludes that all available legal remedies have been exhausted, including the amparo application to the Constitutional Court.

Issues and proceedings before the Committee

6.1Before considering any claims contained in the communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 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. The Committee notes that the State party has objected to admissibility on the grounds of failure to exhaust domestic remedies.

6.2It is a fact undisputed by the author of the communication that, at the hearing on 25 November 1997 of oral minor-offence proceedings in Investigating Court No. 6 in Murcia, before which the complaint against him had been lodged by the police officers on 29 October 1997, it was his own lawyer who requested the suspension of the proceedings on the ground of the existence of the complaint lodged by his client against the police officers. That complaint had been lodged before Murcia Investigating Court No. 1, which had been on duty on the day it had been lodged, namely 31 October 1997. In addition, he had requested “the relevant joinder”. Consequently, the joinder of the author’s complaint against the police officers to that lodged by the officers against the author, which was being dealt with in oral minor-offence proceedings, was expressly requested by the author.

6.3Between the suspended hearing of 25 November 1997 and the new hearing for the continuation of the proceedings, convened by decision of 12 December 1997 for 17 March 1998, the author, who could not have been unaware of the fact that the proceedings were continuing in accordance with the oral minor-offence procedure, did not, although he could have done so, apply for the replacement of that procedure by the ordinary criminal procedure, which he is now invoking as a basis for the communication submitted to the Committee.

7.In the light of the foregoing, the Committee, in accordance with the provisions of rule 107, paragraph 1 (c), of its rules of procedure, declares the communication inadmissible as constituting an abuse of the right to submit a communication under article 22 of the Convention.

8.This decision shall be transmitted to the State party and to the author of the communication.

Annex VIII

Oral statement delivered by the secretariat regarding the financial implications of

establishing a pre-sessional working group

1.This oral statement is made in accordance with rule 25 of the rules of procedure of the Committee against Torture.

2.It will be recalled that, at its 437th meeting, held on 18 May 2000, the Committee against Torture agreed that the establishment of a pre-sessional working group would facilitate its monitoring activities, in particular its consideration of individual communications received under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As indicated in paragraph 20 of its annual report, contained in document A/55/44, the Committee agreed to pursue this matter at its twenty-fifth session currently under way.

3.Should the Committee at its current session decide to pursue the establishment of the above-mentioned pre-sessional working group as from the biennium 2002‑2003, this would entail: (i) the convening of a five-day session of the working group, preceding each session of the Committee, with interpretation provided in two working languages; (ii) a conference room with full facilities; (iii) a maximum of 30 pages of in-session documentation for each session; and (iv) the payment of daily subsistence allowance of four members of the Committee for a period of seven days per session.

4.A preliminary estimate of the above-mentioned requirements at full cost amounts to US$ 178,900 for the whole biennium, the breakdown of which is as follows:

Section 2	in US$
Total conference servicing costs of four sessions of the working group (five working days each)	154 300
Section 22 28 days’ daily subsistence of four Committee members	24 600
	Grand total	178 900

5.The estimates for conference services are based on a theoretical assumption that it would not be possible to provide the services required by the Committee from the existing conference capacity of the Organization. However, it should be noted that the extent to which the Organization’s permanent capacity would need to be supplemented by temporary assistance resources can be determined only in the light of the calendar of conferences and meetings for the biennium 2002-2003. The proposed budget for that biennium is currently under preparation and will include provisions for conference services reflecting the pattern of meetings and conferences held in past years. As a result, it is not anticipated that the decision by the Committee would require additional resources in the proposed programme budget for the biennium 2002-2003.

6.The decision to recommend the establishment of the pre-sessional working group would entail additional resources under section 22, Human rights, estimated at US$ 24,600 for the biennium 2002-2003 for the payment of daily subsistence allowance to the members of the pre‑sessional working group of the Committee.

Annex IX

List of documents for general distribution issued

during the reporting period

A. Twenty-fifth session

Symbol	Title
CAT/C/17/Add.22	Second periodic report of Cameroon
CAT/C/25/Add.11	Second periodic report of Australia
CAT/C/34/Add.12	Initial report of Belarus
CAT/C/34/Add.13	Initial report of Canada
CAT/C/43/Add.3	Third periodic report of Armenia
CAT/C/49/Add.2	Third periodic report of Guatemala
CAT/C/57	Provisional agenda and annotations
CAT/C/SR.439-456/Add.1	Summary records of the twenty-fifth session of the Committee
B. Twenty-sixth session
Symbol	Title
CAT/C/9/Add.16	Initial report of Brazil
CAT/C/24/Add.6	Initial report of Slovakia
CAT/C/24/Add.7	Initial report of Costa Rica
CAT/C/38/Add.1	Second periodic report of the Czech Republic
CAT/C/39/Add.3	Third periodic report of Greece
CAT/C/47/Add.1	Initial report of Kazakhstan
CAT/C/48/Add.1	Second periodic report of Georgia
CAT/C/52/Add.1	Initial report of Bolivia
CAT/C/58	Note by the Secretary-General listing initial reports due in 2001
CAT/C/59	Note by the Secretary-General listing second periodic reports due in 2001
CAT/C/60	Note by the Secretary-General listing third periodic reports due in 2001
CAT/C/61	Note by the Secretary-General listing fourth periodic reports due in 2001
CAT/C/62	Provisional agenda and annotations
CAT/C/SR.457-484	Summary records of the twenty-sixth session of the Committee

Annex X

Contribution of the Committee against Torture to the preparatory process for

the World Conference against Racism, Racial Discrimination, Xenophobia

and Related Intolerance

The Committee against Torture,

Recalling that article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment stipulates, in its definition of torture, that discrimination is one of the prohibited purposes of an act of torture. The Convention states:

“the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”

Recalling that, in the course of its review of State party reports on compliance with the provisions of the Convention, the Committee against Torture has repeatedly expressed concern about the use of torture and other cruel, inhuman or degrading treatment or punishment against vulnerable groups, including national and ethnic minorities, asylum-seekers, refugees and non‑citizens, and that the Committee has also received information and raised questions about allegations of many related forms of discrimination, xenophobia and related intolerance based on racial, religious, linguistic, minority or ethnic status, or based upon sex, age, disability, sexual orientation, citizenship or other status,

Observing with regret, that discrimination of any kind can create a climate in which torture and ill-treatment of the “other” group subjected to intolerance and discriminatory treatment can more easily be accepted, and that discrimination undercuts the realization of equality of all persons before the law,

Emphasizing that the World Conference, scheduled to take place in Durban, South Africa, in September 2001, will examine racism, racial discrimination, xenophobia and other related problems which can hamper the realization of the rights ensured in international human rights instruments, including the Convention against Torture,

Calls upon all States to incorporate the crime of torture, as defined in article 1 of the Convention, as a specific offence in their domestic penal legislation,

Recommends that all States ratify the Convention against Torture, which is the least ratified of the six core international human rights instruments. In addition, urges all States to enhance the internationally recognized and legally binding framework to combat and prevent discrimination which is found in the six core human rights instruments by achieving universal ratification of these instruments,

Recommends that States take all necessary steps to ensure that public officials, including law enforcement officers, do not apply discriminatory practices and do not manifest contempt, racial hatred or xenophobia which may lead them to commit acts amounting to torture or ill‑treatment against vulnerable groups, in particular ethnic, racial, religious, linguistic or national minorities, asylum-seekers or refugees, or on the basis of any other status,

Stresses that article 10 of the Convention obligates each State party to “ensure that education and information about the prohibition of torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials, and others who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention, or imprisonment”. Such educational measures should explicitly address the implications of the fourth purpose contained in the definition of torture (“discrimination of any kind”) found in article 1 of the Convention. Such educational efforts would not only help prevent torture in the criminal justice sector, but would help to eradicate intolerance among the broader public as part of the efforts connected to the World Conference,

Emphasizes the vital importance of having transparent and effective official procedures through which individuals can raise complaints of ill-treatment and torture perpetrated on the basis of discrimination, unequal access to justice and related concerns. It is essential that States parties ensure that all alleged victims have access to needed information, support and legal aid, as appropriate. Among the institutions that facilitate such recourse procedures are the courts, as well as an ombudsman, national human rights commission or other related body. The way such institutions address the element of discrimination when examining allegations of torture or ill-treatment should be assessed to identify any need for improving the effectiveness of these mechanisms,

Recalls that an essential element in eradicating racism, racial discrimination, xenophobia, and related intolerance is overcoming impunity. Under the Convention, States are required to bring to justice those responsible for acts of torture or ill-treatment, whether committed against a single individual or a broad group of the population,

Notes, with regard to non-citizens and asylum-seekers, that States parties must ensure that racism, racial discrimination, xenophobia or related intolerance do not result in decisions of deportation to another State where there are grounds for believing that the deportee would be in real danger of being subjected to torture. States should give special consideration to the real risk of torture that may be faced on the basis on an individual’s membership in a group that is subject to discriminatory treatment in a State to which he or she may be returned,

Emphasizes that the World Conference offers the opportunity for States and representatives of civil society and non-governmental organizations concerned with human rights to reflect on ways to address most effectively the major problems with regard to racial discrimination and related intolerance and to establish a set of goals for themselves to pursue both nationally and internationally. By devoting attention to the results of racism, racial discrimination, xenophobia and related intolerance and focusing upon appropriate methods of prevention and redress, the World Conference will contribute in large measure to the national and international efforts that are currently being directed towards the suppression of torture and cruel, inhuman or degrading treatment or punishment.

Annex XI

Joint Declaration for the United Nations International Day

in Support of Victims of Torture, 26 June 2001

The Committee against Torture, the Board of Trustees of the United Nations Voluntary Fund for Victims of Torture (“the Fund”), the Special Rapporteur of the Commission on Human Rights on the question of torture and the United Nations High Commissioner for Human Rights,

Recalling the decision of the General Assembly in its resolution 52/149 of 12 December 1997 to declare 26 June the United Nations International Day in Support of Victims of Torture,

Recalling also that the General Assembly, recognizing the need to provide assistance to the victims of torture in a purely humanitarian spirit, established the United Nations Voluntary Fund for Victims of Torture to receive voluntary contributions for distribution to victims of torture and their relatives and appealed to all Governments to contribute to the Fund,

Observing that the requests to the Fund for remedy and assistance to victims of torture and their families are ever increasing,

Regretting that torture, an international crime, is still practised by Governments and by other entities exercising effective power,

Reaffirming with dismay that, as affirmed by the Secretary-General, torture is one of the vilest acts to be perpetrated by human beings upon each other,

Exhorting all Governments to eradicate torture and bring to justice torturers everywhere, and reminding everyone that ending torture marks a beginning of true respect for the most basic of all human rights: the intrinsic dignity and value of each individual,

Conscious of the need to emphasize the prevention of torture, as recommended by the World Conference on Human Rights in 1993,

Recognizing that racism, racial discrimination, xenophobia and related intolerance create conditions conducive to torture and have been used to justify torture throughout history,

Noting that the World Conference scheduled to convene in Durban, South Africa, in September 2001 will examine racism, racial discrimination, xenophobia and related intolerance,

Stressing that article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment includes under the definition of torture any act by which severe pain or suffering is inflicted for any reason based on discrimination of any kind,

Recalling that the Special Rapporteur on the question of torture has noted that ethnic differences may contribute to the process of dehumanization of the victim, which is often a necessary condition for torture and ill-treatment to take place,

Emphasizing that the Committee against Torture has observed, with regret, that discrimination of any kind can create a climate in which torture or ill-treatment of “other” groups can more easily be accepted and that discrimination undercuts the realization of equality of all persons before the law,

Acknowledging and commending the valuable and ongoing work of many Governments, associations, non-governmental groups and individuals in combating all forms of torture,

Paying tribute to those, particularly in non-governmental organizations, who work selflessly to relieve the suffering and assist the recovery of torture victims worldwide, and seek redress for them,

1.Strongly appeal on 26 June 2001, on the occasion of the United Nations International Day in Support of Victims of Torture:

(a)To all Governments and other entities exercising effective power:

To call an immediate halt to the practice of torture;

To sanction as soon as possible all persons who have ordered, acquiesced in or practised torture;

To take all appropriate measures necessary for the prevention of torture within the territory under their jurisdiction or control;

(b)To all Governments, intergovernmental and non-governmental organizations and individuals:

To provide as much support as possible to the victims of torture and their families;

To cooperate, in order to prevent torture, for the establishment of an international mechanism of visits to places of detention by adopting as soon as possible an optional protocol to the Convention against Torture;

2.Assure all donors to the Fund:

(a)That their contributions are duly and equitably distributed to organizations in the five continents and effectively utilized to provide medical, psychological, social, economic, legal, humanitarian and other forms of assistance to the victims of torture and their families;

(b)That their contributions are highly appreciated not only by the victims of torture and their families themselves but also by human rights defenders and organizations;

3.Strongly appeal to all donors to the Fund to continue and, if possible, increase their generous contributions to the Fund, preferably on an annual basis;

4.Urge the universal ratification, by the year 2005, of the International Covenant on Civil and Political Rights and its Optional Protocols and of the Convention against Torture, including acceptance of the procedures provided for in articles 21 and 22;

5.Appeal to all States to keep constantly in mind that the eradication of torture requires not only ratification of the above treaties, but also their effective implementation;

6.Encourage renewed educational efforts to prevent torture, including those addressing eradication of torture based upon discrimination of any kind;

7.Call upon all Governments and individuals to assess the way in which courts, ombudspersons, national human rights commissions or related bodies address the element of discrimination when examining allegations of torture or ill-treatment, in order to improve the effectiveness of these mechanisms in enabling individuals to raise concerns about any such allegations based on discrimination or unequal access to justice;

8.Recall that an essential element in eradicating racism, racial discrimination, xenophobia and related intolerance is overcoming impunity and bringing to justice those responsible for acts of torture or ill-treatment, whether committed against a single individual or segments of the population;

9.Urge all States to provide in their domestic law for fair and adequate reparation, including compensation and rehabilitation of the victims of torture;

10.Urge all participants at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban to work together against torture, paying due attention to the relationship between discrimination and the practice of torture, and the need to eradicate any such practice as a vital part of the effort to provide remedies to the victims of torture;

11.Call upon the United Nations Secretariat to transmit the present Joint Declaration to all Governments and give it the widest possible distribution;

12.Appeal to the communications media:

(a)To give as wide publicity as possible to this Joint Declaration on 26 June 2001;

(b)To enlighten both Governments and peoples about the current situation concerning torture by reporting consistently on that subject.

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