Twenty-first session (9-20 November 1998)
Twenty-second session (26 April-14 May 1999)
Organizational and other matters
1. As at 14 May 1999, the closing date of the twenty-second session of the Committee against Torture, there were 114 States parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, nine more than the number of States parties at the time of the adoption of the previous annual report on 22 May 1998. The Convention was adopted by the General Assembly in resolution 39/46 of 10 December 1984 and opened for signature and ratification in New York on 4 February 1985. It entered into force on 26 June 1987 in accordance with the provisions of its article 27. The list of States which have signed, ratified or acceded to the Convention is contained in annex I to the present report. The States parties that have declared that they do not recognize the competence of the Committee provided for by article 20 of the Convention are listed in annex II. The States parties that have made declarations provided for in articles 21 and 22 of the Convention are listed in annex III.
2. The text of the declarations, reservations or objections made by States parties with respect to the Convention, are reproduced in document CAT/C/2/Rev.5. Updated information in that regard may be found at the United Nations Human Rights Web site (www.un.org/Depts...rt_bco/iv_boo/iv_9.html).
3. The Committee against Torture has held two sessions since the adoption of its last annual report. The twenty-first and twenty-second sessions of the Committee were held at the United Nations Office at Geneva from 9 to 20 November 1998 and from 26 April to 14 May 1999.
4. At its twenty-first session the Committee held 19 meetings (345th to 363rd meeting) and at its twenty-second session the Committee held 27 meetings (364th to 390th meeting). An account of the deliberations of the Committee at its twenty-first and twenty-second sessions is contained in the relevant summary records (CAT/C/SR.345-390).
5. In accordance with article 17, paragraph 6, of the Convention and rule 13 of the Committee's rules of procedure, Mr. Bostjan Zupancic, by a letter dated 12 November 1998, informed the Secretary-General of his decision to cease his functions as a member of the Committee. By a note dated 4 February 1999, the Government of Slovenia informed the Secretary-General of its decision to appoint, subject to the approval of the States parties, Ms. Ada Polajnar-Pavcnik to serve for the remainder of Mr. Zupancic's term on the Committee, which will expire on 31 December 1999.
6. Since none of the States parties to the Convention responded negatively within the six-week period after having been informed by the Secretary-General of the proposed appointment, the Secretary-General considered that they had approved the appointment of Ms. Polajnar-Pavcnik as a member of the Committee, in accordance with the above-mentioned provisions. The list of the members of the Committee in 1999, together with an indication of the duration of their term of office, appears in annex IV to the present report.
7. All the members attended the twenty-first session of the Committee. The twenty-second session of the Committee was attended by all the members, except Ms. Polajnar-Pavcnik who attended two of the three weeks of the session.
8. At the 374th meeting, on 3 May 1999, the newly appointed member, Ms. Polajnar-Pavcnik, made the solemn declaration upon assuming her duties, in accordance with rule 14 of the rules of procedure.
9. The following members of the Committee acted as officers during the reporting period:
Chairman: Mr. Peter Burns
Vice-Chairmen: Mr. Guibril Camara, Mr. Alejandro González Poblete, Mr. Bostjan Zupancic (until 20 November 1998), Mr. Yu Mengjia (from 26 April 1999)
Rapporteur:Mr. Bent Sørensen
10. At its 345th meeting, on 9 November 1999, the Committee adopted the following items listed in the provisional agenda submitted by the Secretary-General in accordance with rule 6 of the rules of procedure (CAT/C/46), as the agenda of its twenty-first session:
1. Adoption of the agenda.
2. Organizational and other matters.
3. Submission of reports by States parties under article 19 of the Convention.
4. Consideration of reports submitted by States parties under article 19 of the Convention.
5. Consideration of information received under article 20 of the Convention.
6. Consideration of communications under article 22 of the Convention.
11. At its 364th meeting, on 26 April 1999, the Committee adopted the following items listed in the provisional agenda submitted by the Secretary-General in accordance with rule 6 of the rules of procedure (CAT/C/50) as the agenda of its twenty-second session:
2. Solemn declaration by a member of the Committee appointed under article 17, paragraph 6, of the Convention.
3. Organizational and other matters.
4. Submission of reports by States parties under article 19 of the Convention.
5. Consideration of reports submitted by States parties under article 19 of the Convention.
6. Consideration of information received under article 20 of the Convention.
7. Consideration of communications under article 22 of the Convention.
8. Future meetings of the Committee.
9. Action by the General Assembly at its fifty-third session:
(a) Annual report submitted by the Committee under article 24 of the Convention;
(b) Effective implementation of international instruments on human rights, including reporting obligations under international instruments on human rights.
10. Annual report of the Committee on its activities.
12. At the 348th meeting, on 11 November 1998, Mr. Sørensen, who had been designated by the Committee as its observer in the inter-sessional open-ended working group of the Commission on Human Rights elaborating the protocol, informed the Committee on the progress made by the working group at its seventh session held at the United Nations Office at Geneva from 28 September to 9 October 1998.
13. At the 364th meeting, on 26 April 1999, Mr. Sørensen informed the Committee about the outcome of the Second International Meeting on the Development of a Manual for the Effective Documentation of Torture, at which he had participated. The meeting was organized by non-governmental organization and medical experts and was held at Istanbul from 11 to 13 March 1999. At the same Committee meeting, Mr. Burns and Mr. Mavrommatis reported on their participation in two workshops on issues relating to refugees. The workshop in which Mr. Burns had participated had been organized by the Greek Government and the United Nations High Commissioner for Refugees at Athens, in December 1998. The workshop in which Mr. Mavrommatis had participated had been organized jointly by the Ministry for Foreign Affairs of Sweden and non-governmental organizations in Stockholm, also in December 1998. The workshop focused, in particular, on the training of immigration officers with regard to the investigation on and evaluation of applications for asylum involving allegations of torture.
Action by the General Assembly at its fifty-third session
14. The Committee considered this agenda item at its 370th and 386th meetings, held on 29 April and 11 May 1999.
15. The Committee took note of General Assembly resolution 53/139 of 9 December 1998. The Committee welcomed, in particular, the fact that the General Assembly had authorized the Secretary-General to extend the spring sessions of the Committee by one additional week.
Twenty-first session
16. The Committee took note of the report of the 10th meeting of persons chairing the human rights treaty bodies (A/53/432, annex), which was held at the United Nations Office at Geneva from 14 to 18 September 1998. The Chairman of the Committee who had chaired that meeting provided information on the main issues discussed and recommendations made by the Chairpersons.
Twenty-second session
17. The Committee took note of General Assembly resolution 53/138 of 9 December 1999. In addition, the Committee resumed its discussion on issues and recommendations which were included in the report of the 10th meeting of persons chairing treaty bodies. The Committee, inter alia, was of the view that it was not necessary for it to hold sessions at United Nations Headquarters. It also hoped that the extension of its spring sessions by one additional week would help in reducing its backlog concerning State party reports to be considered under article 19 of the Convention and individual communications to be examined under article 22 of the Convention.
18. In connection with the question of its increasing workload, the Committee considered a draft proposal for a plan of action to strengthen the implementation of the Convention as well as other international human rights instruments, namely: the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. The draft proposal had been prepared by the Office of the United Nations High Commissioner on Human Rights at the request of the persons chairing the human rights treaty bodies at their 10th meeting.
19. The Committee generally agreed on the usefulness of a plan of action and provided suggestions to improve the text of the draft proposal. It stressed that the part of the Plan of Action concerning the implementation of the Convention should include a section on resources to be made available to provide medical expertise to the Committee.
20. The Committee will further discuss the draft plan of action at its future sessions.
Chapter III
Submission of reports by States parties under article 19 of the Convention
Action taken by the Committee to ensure the submission of reports
21. The Committee, at its 345th, 362nd and 364th meetings, held on 9 and 20 November 1998, and 26 April 1999, considered the status of submission of reports under article 19 of the Convention. The Committee had before it the following documents:
(a) Notes by the Secretary-General concerning initial reports of States parties that were due from 1988 to 1999 (CAT/C/5, 7, 9, 12, 16/Rev.1, 21/Rev.1, 24, 28/Rev.1, 32/Rev.2, 37, 42 and 47);
(b) Notes by the Secretary-General concerning second periodic reports that were due from 1992 to 1999 (CAT/C/7, 20/Rev.1, 25, 29, 33, 38, 43 and 48);
(c) Notes by the Secretary-General concerning third periodic reports that were due from 1996 to 1999 (CAT/C/34, 39, 44 and 49).
22. The Committee was informed that, in addition to the 16 reports that were scheduled for consideration by the Committee at its twenty-first and twenty-second sessions (see chap. IV, paras. 29 and 30), the Secretary-General had received the initial reports of Azerbaijan (CAT/C/37/Add.3), Kyrgyzstan (CAT/C/42/Add.1) and Uzbekistan (CAT/C/32/Add.3), the second periodic reports of Austria (CAT/C/17/Add.21) and Malta (CAT/C/29/Add.6) and the third periodic reports of China (CAT/C/39/Add.2), Finland (CAT/C/44/Add.6), the Netherlands (Antilles and Aruba) (CAT/C/44/Add.4), Peru (CAT/C/39/Add.1), Poland (CAT/C/44/Add.5) and Portugal (CAT/C/44/Add.7).
23. The Committee was also informed that the revised version of the initial report of Belize, requested for 10 March 1994 by the Committee at its eleventh session, had not yet been received in spite of seven reminders sent by the Secretary-General and a letter that the Chairman of the Committee addressed to the Minister for Foreign Affairs and Economic Development of Belize on 20 November 1995.
24. In addition, at its twenty-first and twenty-second sessions the Committee was informed about the reminders that had been sent by the Secretary-General to States parties whose reports were overdue. The situation with regard to overdue reports as at 14 May 1999, was as follows:
25. The Committee expressed concern at the number of States parties that did not comply with their reporting obligations. With regard, in particular, to States parties whose reports were more than four years overdue, the Committee deplored that, in spite of several reminders sent by the Secretary-General and letters or other messages of its Chairman to their respective Ministers for Foreign Affairs, those States parties continued not to comply with the obligations they had freely assumed under the Convention. The Committee stressed that it had the duty to monitor the Convention and that the non-compliance of a State party with its reporting obligations constituted an infringement of the provisions of the Convention.
26. In this connection, the Committee decided to continue its practice of making available lists of States parties whose reports are overdue during the press conferences that the Committee usually holds at the end of each session.
27. The Committee again requested the Secretary-General to continue sending reminders automatically to those States whose initial reports were more than 12 months overdue and subsequent reminders every six months.
28. The status of submission of reports by States parties under article 19 of the Convention as at 14 May 1999, the closing date of the twenty-second session of the Committee, appears in annex V to the present report.
Consideration of reports submitted by States parties under article 19 of the Convention
29. At its twenty-first and twenty-second sessions, the Committee considered reports submitted by 16 States parties, under article 19, paragraph 1, of the Convention. The following reports, listed in the order in which they had been received by the Secretary-General, were before the Committee at its twenty-first session:
30. The following reports, listed in the order in which they had been received by the Secretary-General, were before the Committee at its twenty-second session:
31. In accordance with rule 66 of the rules of procedure of the Committee, representatives of all the reporting States were invited to attend the meetings of the Committee when their reports were examined. All of the States parties whose reports were considered by the Committee sent representatives to participate in the examination of their respective reports.
32. In accordance with the decision taken by the Committee at its fourth session,1 country rapporteurs and alternate rapporteurs were designated by the Chairman, in consultation with the members of the Committee and the Secretariat, for each of the reports submitted by States parties and considered by the Committee at its twenty-first and twenty-second sessions. The list of the above-mentioned reports and the names of the country rapporteurs and their alternates for each of them appear in annex VI to the present report.
33. In connection with its consideration of reports, the Committee also had before it the following documents:
(a) Status of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and reservations and declarations under the Convention (CAT/C/2/Rev.5);
(b) General guidelines regarding the form and contents of initial reports to be submitted by States parties under article 19 of the Convention (CAT/C/4/Rev.2);
(c) General guidelines regarding the form and contents of initial reports to be submitted by States parties under article 19 of the Convention (CAT/C/14/Rev.1).
34. In accordance with the decision taken by the Committee at its eleventh session,2 the following sections, arranged on a country-by-country basis according to the sequence followed by the Committee in its consideration of the reports, contain references to the reports submitted by the States parties and to the summary records of the meetings of the Committee at which the reports were considered, as well as the text of conclusions and recommendations adopted by the Committee with respect to the reports of States parties considered at its twenty-first and twenty-second sessions.
35. The Committee considered the initial report of Yugoslavia (CAT/C/16/Add.2) at its 348th, 349th and 354th meetings, held on 11 and 16 November 1998 (CAT/C/SR.348, 349 and 354) and has adopted the following conclusions and recommendations:
1. Introduction
36. Yugoslavia signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 18 April 1989 and ratified it on 20 June 1991. It recognized the competence of the Committee against Torture to receive and consider communications under articles 21 and 22 of the Convention.
37. The initial report of Yugoslavia was due in 1992. The Committee expresses concern over the fact that the report was submitted on 20 January 1998 only. The report contains background information, information on international instruments, on competent authorities, on court and police procedures and information concerning the compliance with articles 2 to 16 of the Convention.
2. Positive aspects
38. As a positive aspect, it can be mentioned that the provisions of article 25 of the Constitution of the Federal Republic of Yugoslavia forbid all violence against a person deprived of liberty, any extortion of a confession or statement. This article proclaims that no one may be subjected to torture, degrading treatment or punishment. The same norm is contained in the Constitutions of the constituent republics of Serbia and Montenegro.
39. The Criminal Code of Yugoslavia defines the punishable offences of unlawful deprivation of freedom, extortion of depositions and maltreatment in the discharge of office. Similar provisions are contained in the criminal codes of Serbia and of Montenegro. The Law on Criminal Procedure applicable throughout the Federal Republic of Yugoslavia contains a provision according to which any extortion of a confession or statement from an accused person or any other person involved in the proceedings is forbidden and punishable. This code also provides that during detention neither the personality nor the dignity of an accused may be offended.
40. The police regulations in Yugoslavia provide disciplinary and other measures, including termination of employment and criminal charges in cases of acts by police officers violating the provisions of the Convention.
41. The current legislative reform in the area of criminal law, and especially criminal procedure, envisions specific provisions, which will, hopefully, contribute to the improved prevention of torture in Yugoslavia.
3. Factors and difficulties impeding the application of the provisions of the Convention
42. The Committee took into account the situation in which Yugoslavia currently finds itself, especially with respect to the unrest and ethnic friction in the province of Kosovo. However, the Committee emphasizes that no exceptional circumstances can ever provide a justification for failure to comply with the terms of the Convention.
4. Subjects of concern
43. The Committee's concerns relate mainly to legislation not complying with the Convention and, more gravely, the situation regarding the implementation in practice of the Convention.
44. With respect to legislation, the Committee is concerned over the absence in the criminal law of Yugoslavia of a provision defining torture as a specific crime in accordance with article 1 of the Convention. The incorporation of the definition contained in article 1 of the Convention, in compliance with article 4, paragraph 1 and article 2, paragraph 1, requires specific as well as systematic legislative treatment in the area of substantive criminal law. Article 4 of the Convention demands that each State party shall ensure that all acts of torture are offences under its own criminal law. A verbatim incorporation of this definition into the Yugoslav Criminal Code would permit the current Yugoslav criminal code formula defining the "extortion of confession" to be made more precise, clear and effective.
45. One of the essential means in preventing torture is the existence, in procedural legislation, of detailed provisions on the inadmissibility of unlawfully obtained confessions and other tainted evidence. In this respect the report of the State party (para. 70) only mentions the "general principles" of national criminal legislation. However, the absence of detailed procedural norms pertaining to the exclusion of tainted evidence can diminish the practical applicability of these general principles as well as of other relevant norms of the Law on Criminal Procedure. Evidence obtained in violation of article 1 of the Convention should never be permitted to reach the cognizance of the judges deciding the case, in any legal procedure.
46. Regulating pre-trial detention is of specific significance for the prevention of torture. Two issues are crucial in this respect, namely incommunicado detention and access to counsel. Article 23 of the Constitution of Yugoslavia requires that the detained person should have prompt access to counsel. This would imply that such access to counsel must be made possible immediately after the arrest. However, article 196 of the Law on Criminal Procedure permits the police to keep a person, in specific instances, in detention for a 72 hour period, without access either to counsel or an investigating judge. The report does not mention the duration of the post-indictment pre-trial detention, which should not be unduly extended.
47. With respect to the factual situation in Yugoslavia, the Committee is extremely concerned over the numerous accounts of the use of torture by the State police forces it has received from non-governmental organizations. Reliable data received by the Committee from non-governmental organizations include information describing numerous instances of brutality and torture by the police, particularly in the districts of Kosovo and Sandjack. The acts of torture perpetrated by the police, and especially by its special units, include beatings by fists and wooden or metallic clubs, mainly on the head, the kidney area and on the soles of the feet, resulting in mutilations and even death in some cases. There were instances of use of electro-shock. The concern of the Committee derives also from reliable information that confessions obtained by torture were admitted as evidence by the courts even in cases where the use of torture had been confirmed by pre-trial medical examinations.
48. The Committee is also gravely concerned over the lack of sufficient investigation, prosecution and punishment by the competent authorities (article 12 of the Convention) 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. De jure impunity of the perpetrators of torture and other cruel, inhuman or degrading treatment or punishment results, inter alia, from amnesties, suspended sentences and reinstatement of discharged officers that have been granted by the authorities. Neither the report nor the oral statement of the Yugoslav delegation said anything about the Yugoslav Government's efforts concerning the rehabilitation of the torture victims, the amount of compensation they receive and the actual extent of redress afforded them.
49. The Committee hopes that in the future it will be possible to bridge the disconcerting discrepancy between the Yugoslav report and the apparent reality of abuse. However, the Committee is also concerned with the apparent lack of political will on the part of the State party to comply with its obligations under the Convention.
5. Recommendations
50. The Committee calls upon the State party to fulfil the legal, political and moral obligations it undertook when it ratified the Convention. The Committee expects the second periodic report of Yugoslavia, already overdue, to address allegations of torture under Yugoslav jurisdiction and respond directly to them. The Committee expects, in particular, that the State party provides information concerning all specific allegations of torture handed over to its representatives during the dialogue with the Committee. In compliance with articles 10, 12, 13 and 14 of the Convention, the Committee would appreciate information on all the educational efforts that the Yugoslav Government intends to undertake with a view to preventing torture and breaches of article 16 of the Convention. In addition, the Committee would appreciate receiving information on legislative and practical measures the State party intends to undertake in order to provide victims of torture with appropriate redress, compensation and rehabilitation.
51. The Committee recommends the verbatim incorporation of the crime of torture into the Yugoslav criminal codes. In order to diminish the recurrence of torture in Yugoslavia, the Committee recommends that the State party legally and practically ensure the independence of the judiciary, the unrestricted access to counsel immediately after arrest, the shortening of the length of police custody to a maximum period of 48 hours, the shortening of the period of pre-trial post-indictment detention, strict exclusion of all evidence directly or indirectly derived from torture, effective civil redress and a vigorous criminal prosecution in all cases of torture and breaches of article 16 of the Convention.
52. The Committee finally calls upon the State party to submit its second periodic report by 30 November 1999.
53. The Committee considered the initial report of Iceland (CAT/C/37/Add.2) at its 350th, 351st and 357th meetings, held on 12 and 17 November 1998 (CAT/C/SR.350, 351 and 357) and has adopted the following conclusions and recommendations:
54. The Committee thanks the Government of Iceland for its frank cooperation and its representative for the constructive dialogue. It considers that the initial report of the State party fully conforms with the Committee's general guidelines for the preparation of reports and provides detailed information on the implementation of each provision of the Convention.
55. The Committee notes with satisfaction that Iceland has made the declarations necessary to recognize the Committee's competence under article 21 and 22 of the Convention.
56. It also notes with satisfaction that the amendments to the Constitution adopted in 1995 enhance protection of human rights and establish, in particular, the absolute prohibition of torture.
57. The Committee finally commends the Icelandic authorities for the enactment of legislation and rules on the rights of arrested persons, interrogations by the police, and the protection of persons committed to psychiatric hospitals against their will.
3. Subjects of concern
58. The Committee is concerned over the fact that torture is not considered as a specific crime in the penal legislation of the State party.
59. It is equally concerned about the use of solitary confinement, particularly as a preventive measure during pre-trial detention.
4. Recommendations
60. The Committee recommends that:
(a) Torture as a specific crime be included in the penal legislation of Iceland;
(b) The Icelandic authorities review the provisions regulating solitary confinement during pre-trial detention in order to reduce considerably the cases to which solitary confinement could be applicable;
(c) The legislation concerning evidence to be adduced in judicial proceedings be brought in line with the provisions of article 15 of the Convention so as to explicitly exclude any evidence made as a result of torture;
(d) Information on constraining measures applied in psychiatric hospitals be included in Iceland's next periodic report.
61. The Committee considered the second periodic report of Croatia (CAT/C/33/Add.4) at its 352nd, 353rd and 359th meetings, on 13 and 18 November 1998 (CAT/C/SR.352, 353 and 359), and adopted the following conclusions and recommendations.
62. Croatia accepted the Convention against Torture by succession and recognized the competence of the Committee to receive complaints, as provided for in articles 21 and 22 of the Convention, on 8 October 1991. Croatia has also been a party to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment since 1997.
63. The Committee notes with satisfaction that the second periodic report complies with the general guidelines for periodic reports prepared by the Committee. Although it was submitted a year and a half late, the report demonstrates the State party's willingness to cooperate with the Committee in order to fulfil its obligations under the Convention.
64. Croatia has incorporated the crime of torture and acts constituting other inhuman, cruel or degrading treatment or punishment into its internal legislation in terms which are in keeping with the provisions of articles 4 and 16 of the Convention, since it makes these offences punishable by appropriate penalties which take into account their grave nature.
65. There have been some changes in the rules of criminal procedure, such as the introduction of the obligation to bring detainees before a judge within 24 hours so that a decision may be taken on the lawfulness of detention and the determination of the maximum time limits for pre-trial detention.
66. The Committee notes that the Amnesty Act adopted in 1996 is applicable to a number of offences characterized as acts of torture or other cruel, inhuman or degrading treatment or punishment within the meaning of the Convention.
67. The Committee is seriously concerned about allegations of ill-treatment and torture, some of which resulted in death and are attributable to law enforcement officials, especially the police.
68. The Committee is concerned about the incompetence revealed in investigations of cases of serious violations of the Convention, including deaths which have not yet been explained. It is also concerned about the lack of a sufficiently detailed report, which was to be prepared on the basis of the recommendations made following the consideration of the initial report.
69. As during the consideration of the initial report, the Committee recommends that the State party should make all necessary efforts to ensure that the competent authorities immediately conduct an impartial, appropriate and full investigation whenever they have to deal with allegations of serious violations made in a credible manner by non-governmental organizations.
70. The Committee also recommends that, through the intermediary of the competent authorities, the State party should take account of the evidence transmitted to it by the International Tribunal for the Former Yugoslavia and some non-governmental organizations concerning violations of human rights and, in particular, cases of torture and cruel, inhuman or degrading treatment or punishment.
71. The Committee recommends that constitutional complaints should be received directly by the Constitutional Court in all cases of allegations of torture and other cruel, inhuman or degrading treatment or punishment.
72. The Committee considered the third periodic report of the United Kingdom of Great Britain and Northern Ireland and Dependent Territories (CAT/C/44/Add.1) at its 354th, 355th and 360th meetings, held on 16 and 19 November 1998 (CAT/C/SR.354, 355 and 360) and has adopted the following conclusions and recommendations:
73. The third periodic report of the United Kingdom of Great Britain and Northern Ireland was due on 6 January 1998 and was received on 2 April 1998. In every respect it conformed to the guidelines of the Committee pertaining to the preparation of such periodic reports. In particular the Committee found it helpful to have its recommendations from the examination of the second periodic report summarized at the outset together with a short statement concerning the action the State party had taken in that respect.
74. (a) The enactment of the Human Rights Act, 1998;
(b) The enactment of the Immigration Commission Act, 1998;
(c) The "Peace Process" in Northern Ireland, pursuant to the Good Friday Agreement;
(d) The removal of corporal punishment as a penalty in several of the Dependent Territories.
75. The continuation of the state of emergency in Northern Ireland, noting that no exceptional circumstances can ever provide a justification for failure to comply with the Convention.
76. (a) The number of deaths in police custody and the apparent failure of the State party to provide an effective investigative mechanism to deal with allegations of police and prison authorities' abuse, as required by article 12 of the Convention, and to report publicly in a timely manner;
(b) The use of prisons as places in which to house refugee claimants;
(c) The retention of detention centres in Northern Ireland, particularly Castlereagh Detention Centre;
(d) The rules of evidence in Northern Ireland that admit confessions of suspected terrorists upon a lower test than in ordinary cases and in any event permits the admission of derivative evidence even if the confession is excluded;
(e) Sections 134 (4) and (5) (b) (iii) of the Criminal Justice Act 1988, appear to be in direct conflict with article 2 of the Convention;
(f) Sections 1 and 14 of the State Immunity Act, 1978, seem to be in direct conflict with the obligations undertaken by the State party pursuant to articles 4, 5, 6 and 7 of the Convention;
(g) The continued use of plastic bullet rounds as a means of riot control;
(h) The dramatic increase in the number of inmates held in prisons in England and Wales over the last three years.
77. (a) The closure of detention centres, particularly Castlereagh, at the earliest opportunity;
(b) The reform of the State Immunity Act, 1978, to ensure that its provisions conform to the obligations contained in the Convention;
(c) The reform of sections 134 (4) and 5 (b) (iii) of the Criminal Justice Act, 1988, to bring them into conformity with the obligations contained in article 2 of the Convention;
(d) The abolition of the use of plastic bullet rounds as a means of riot control;
(e) Reconstruction of the Royal Ulster Constabulary so that it more closely represents the cultural realities of Northern Ireland. This should continue to be associated with an extensive programme of re-education for members of the Royal Ulster Constabulary directed at the objectives of the Peace Accord and the best methods of modern police practices;
(f) The Committee finally recommends that in the case of Senator Pinochet of Chile, the matter be referred to the office of the public prosecutor, with a view to examining the feasibility of and if appropriate initiating criminal proceedings in England, in the event that the decision is made not to extradite him. This would satisfy the State party's obligations under articles 4 to 7 of the Convention and article 27 of the Vienna Convention on the Law of Treaties of 1969.
78. The Committee considered the third periodic report of Hungary (CAT/C/34/Add.10) at its 356th, 357th and 361st meetings, held on 17 and 19 November 1998 (CAT/C/SR.356, 357 and 361) and has adopted the following conclusions and recommendations:
79. The Committee examined the initial report of Hungary in 1989 and its second periodic report in 1993. The third periodic report of Hungary complies with the relevant guidelines but whereas it was due in 1996, it was submitted in April 1997. Hungary has recognized the competence of the Committee to receive and consider communications, under both articles 21 (1) and 22 of the Convention. It has also adhered to the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
80. The Committee notes with satisfaction that Hungary earlier this year withdrew its reservation on geographical limitation to the 1951 Geneva Convention relating to the Status of Refugees, that previously excluded non-European asylum seekers. The Committee also notes with satisfaction, inter alia, the new legislation on asylum; Act LIX 1997 on Criminal Punishment System; the Ombudsman mechanism and Hungary's compliance with the previous recommendations of the Committee.
81. The Committee is concerned with the provisions of article 123 of the Criminal Code of Hungary that makes torture punishable only if the soldier or policeman committing the act was aware that by so doing he or she was committing a criminal offence. The Committee is also concerned about the persistent reports that an inordinately high proportion of detainees is roughly handled or treated cruelly before, during and after interrogation by the police and that a disproportionate number of detainees and/or prisoners serving their sentence are Roma.
82. The Committee is disturbed by information to the effect that a number of complaints of torture or treatment contrary to article 16 of the Convention do not result in the initiation of investigations by prosecutors.
83. The Committee is concerned about reports on conditions in prisons, detention centres and holding centres for refugees such as, inter alia, overcrowding, lack of exercise, education and hygiene.
4. Conclusions and recommendations
84. The Committee recommends that all necessary measures, including, in particular, prompt access to defence counsel assistance soon after arrest, and improved training, be taken to prevent and eradicate torture and all acts of cruel, inhuman or degrading treatment or punishment.
85. The Committee requests that Hungary should include in its next periodic report all relevant statistics, data and information on:
(a) The number of complaints about ill-treatment; the proportion they represent in relation to the total number of cases investigated and, in particular, the proportion of Roma complaints, detainees and prisoners;
(b) The number and proportion of cases discontinued by prosecutors, i.e. cases of torture or violations of article 16, the reasons, if any, for such discontinuance and the measures taken to ensure the complete impartiality and effectiveness of the investigation of the aforesaid complaints or accusations;
(c) Complaints against military personnel for alleged torture of civilians and the justification for military prosecutors handling such cases.
86. The Committee further urges the State party to take all appropriate action necessary to bring the Hungarian translation of article 3 (1) of the Convention in line with the authentic text of the aforesaid article.
87. The Committee urges the State party to re-examine article 123 of the Criminal Code and to effect the necessary amendments thereto in order to ensure its consonance with the terms and purposes of the Convention.
88. The Committee considered the second periodic report of Tunisia (CAT/C/20/Add.7) at its 358th, 359th and 363rd meetings, held on 18 and 20 November 1998 (CAT/C/SR.358, 359 and 363) and has adopted the following conclusions and recommendations:
89. Tunisia ratified the Convention on 23 September 1988 and made the declarations provided for in articles 21 and 22.
90. Its second periodic report was due on 22 October 1993. The Committee regrets that the report was received on 10 November 1997 only.
91. During the period covered by the report measures were taken by the authorities to build a legal and constitutional framework for the promotion and protection of human rights. The Committee welcomes the establishment of a number of human rights posts, offices and units within the executive branch and within the civil society. The Committee also welcomes the efforts that were made to raise the level of awareness of the principles of human rights in the society. The Committee noted, in particular, the publishing of a code of conduct for law enforcement officials, the setting up of human rights departments in Tunisian universities and the establishment of human rights units in some key ministries.
92. The Committee also notes that, for the first time, an independent commission of investigation was established to examine the allegations of abuses that took place in 1991.
93. The Tunisian Constitution provides that duly ratified treaties have a higher authority than laws. Thus, the provisions of the Convention take precedence over domestic legislation.
94. The Committee is aware of the challenges that were facing the Government during the period covered by the report. However, the Committee emphasizes that no exceptional circumstances can ever provide a justification for failure to comply with the terms of the Convention.
95. The Committee reiterates its views that the definition of torture under Tunisian law is not in conformity with article 1 of the Convention, as the Tunisian Criminal Code, inter alia, uses the term "violence" instead of torture and article 101 of the Criminal Code penalizes the use of violence only when it is used without just cause.
96. The Committee is concerned over the wide gap that exists between law and practice with regard to the protection of human rights. The Committee is particularly disturbed by the reported widespread practice of torture and other cruel and degrading treatment perpetrated by security forces and the police, which, in certain cases, resulted in death in custody. Furthermore, it is concerned over the pressure and intimidation used by officials to prevent the victims from lodging complaints.
97. The Committee is concerned that many of the regulations existing in Tunisia for arrested persons are not adhered to in practice, in particular:
(a) The limitation of pre-trial detention to the 10-day maximum prescribed by law;
(b) The immediate notification of family members;
(c) The requirement of medical examination with regard to allegations of torture;
(d) The carrying out of autopsies in all cases of death in custody.
98. The Committee notes that arrests are very often made by plain clothes agents who refuse to show any identification or warrant.
99. The Committee is particularly disturbed by the abuses directed against female members of the families of detainees and exiled persons. It has been reported that dozens of women were subjected to violence and sexual abuses or sexual threats in order to put pressure on or to punish their imprisoned or exiled relatives.
100. The Committee feels that, by constantly denying these allegations, the authorities are in fact granting those responsible for torture immunity from punishment, thus encouraging the continuation of these abhorrent practices.
101. The Committee notes further that the State party does not accede to requests of extradition of political refugees. The Committee expresses its concern that this should not be the only exception for refusal of extradition. In this regard, the Committee draws the attention of the State party to article 3 of the Convention, which prohibits the extradition of a person if "there are substantial grounds for believing that he would be in danger of being subjected to torture".
102. The Committee calls upon the State party to put an end to the degrading practice of torture and to eliminate the gap between the law and its implementation and in particular to take up the following measures:
(a) To ensure strict enforcement of the provisions of law and procedures of arrest and police custody;
(b) To strictly enforce the procedures of registration, including notification of families of persons taken into custody;
(c) To ensure the right of victims of torture to lodge a complaint without the fear of being subjected to any kind of reprisal, harassment, harsh treatment or prosecution, even if the outcome of the investigation into his claim does not prove his or her allegation, and to seek and obtain redress if these allegations are proven correct;
(d) To ensure that medical examinations are automatically provided following allegations of abuse and an autopsy is performed following any death in custody; and that the findings of all investigations concerning cases of torture are made public, and that this information should include details of any offences committed, the names of the offenders, the dates, places and circumstances of the incidents and the punishment received by those who were found guilty.
103. The Committee urges the State party to take the following measures:
(a) To reduce the police custody period to a maximum of 48 hours;
(b) To bring the relevant articles of the Criminal Code into line with the definition of torture as contained in article 1 of the Convention;
(c) To amend the relevant legislation to ensure that no evidence obtained through torture shall be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.
104. The Committee urges the State party to submit its third periodic report by 30 November 1999.
6. Decision of the Committee on the observations submitted by Tunisia
105. In accordance with article 19, paragraph 4, of the Convention and rule 68, paragraph 1, of its rules of procedure, the Committee, on 26 April 1999, decided, at its discretion, to include the observations on the Committee's conclusions and recommendations received from Tunisia on 27 November 1998 in its annual report. The text of the observations of the State party reads as follows:
"Comments by the Tunisian Government on the conclusions and recommendations of the Committee against Torture following its consideration of Tunisia's second periodic report
The Committee's comment should have been included in the recommendations rather than among the so-called 'subjects of concern'.
106. The Committee considered the initial report of the former Yugoslav Republic of Macedonia (CAT/C/28/Add.4) at its 366th, 369th and 373rd meetings held on 27, 28 and 30 April 1999 (CAT/C/SR.366, 369 and 373) and adopted the following conclusions and recommendations:
107. The former Yugoslav Republic of Macedonia as a successor State recognized the obligations of the former Yugoslav Federation and on 12 December 1994 became a State party to the Convention. Accordingly, the former Yugoslav Republic of Macedonia continues to recognize the competence of the Committee against Torture with regard to articles 20, 21 and 22 of the Convention.
108. The Committee was grateful to the State party for the size and quality of its delegation which contributed in a large measure to the fruitful dialogue developed during the consideration of the report.
109. The submission of the initial report of the former Yugoslav Republic of Macedonia was delayed for reasons that were largely outside the control of the State party. The report generally is in conformity with the guidelines of the Committee for the preparation of State party reports.
110. The Committee considers as positive aspects the following:
(a) Article 11 of the Constitution of the former Yugoslav Republic of Macedonia provides that the human right to physical and moral dignity is irrevocable and that any form of torture, or inhuman or humiliating conduct or punishment is prohibited;
(b) It is very important that the Criminal Code defines as a crime the act of a public official who while performing his duty, applies force, threat or some other forbidden method of extorting a confession;
(c) The establishment of a State Commission for the supervision of penal and correctional institutions;
(d) The participation of public officials in seminars on the prohibition of abuse and torture, organized by the Council of Ministers and the Council of Europe;
(e) The evident willingness of the State party to implement the provisions of the Convention;
(f) The commitment of the former Yugoslav Republic of Macedonia to respect the principles and the norms contained in the Convention by including extensive training of police and medical personnel in its system of education and re-education. Of particular note is the country's incorporation of the norms reinforcing the prohibition of torture into its primary and secondary school curricula.
111. The Committee recognizes that the current situation in the former Yugoslav Republic of Macedonia puts a considerable burden on the Government but should not prevent the Government from making all efforts to fully implement the provisions of the Convention.
112. The absence of a specific crime of torture as defined in the Convention.
113. The ambiguity of the provisions in the Criminal Code with regard to elements and penalty. This leads to confusion as to the way in which article 2, paragraph 3 and article 4 of the Convention are implemented.
114. The definition of torture as contained in the Convention and torture as a defined crime should be incorporated into the Criminal Code of the former Yugoslav Republic of Macedonia with appropriate penalties attached to it.
115. The State party is urged to investigate complaints of maltreatment by government officials particularly those that relate to ethnic minorities. The investigations should be prompt and impartial and those officials that may be responsible for such maltreatment should be prosecuted.
116. The former Yugoslav Republic of Macedonia, at its borders, should fully comply with its obligations under article 3 of the Convention even in the present situation of a massive influx of refugees from Kosovo.
117. The Committee would like to know, in particular, from the State party what is the specific legal source providing that the justification of superior orders is not applicable to the crime of torture.
118. The Committee considered the second periodic report of Mauritius (CAT/C/43/Add.1) at its 368th, 371st and 375th meetings, held on 28 and 29 April and 3 May 1999 (CAT/C/SR.368, 371 and 375) and has adopted the following conclusions and recommendations.
119. The Committee welcomes the report of Mauritius submitted on time and supplemented and updated by the Solicitor-General of the State party, who introduced it. The above clearly reflects the continuing efforts of the State party to comply with its international human rights obligations.
120. The Committee takes note of the following, inter alia, positive aspects, many of which closely follow upon recommendations made by it during the consideration of the initial report:
(a) The abolition of the death penalty;
(b) The recent coming into force of the Protection of Human Rights Law, which establishes the National Human Rights Commission, the competence of which includes examination of torture complaints;
(c) The amendment of article 16 of the Constitution in order to prohibit discrimination based on gender;
(d) The training programmes for the police and other law enforcement officials with a human rights component.
121. No factors or particular difficulties emerged as a result of the consideration of the report by the Committee and it was clear that the State party, a developing country, is to the best of its ability carrying out its obligations under the Convention.
122. The Committee is concerned about the fact that six years after its accession to the Convention and four years after the consideration of its initial report, the State party has failed to incorporate into its internal legislation important provisions of the Convention namely:
(a) A definition that encompasses all cases covered by article 1 of the Convention;
(b) Article 3 of the Convention in toto, i.e. covering not only extradition but also, expulsion and return (refoulement);
(c) The provisions of article 5, subparagraphs 1 (b) and (c) and 2 in conjunction with those of articles 8 and 9.
123. The Committee recommends that the State party should take the following measures:
(a) Enact legislation defining torture in accordance with article 1 and considering it as a specific crime;
(b) Clarify through appropriate legislation that superior orders can never be invoked as a justification of an act of torture;
(c) Introduce legislation that would give effect to all the provisions of article 3 of the Convention by preventing extradition, return and expulsion of persons in danger of being subjected to torture;
(d) Take legislative measures to establish universal jurisdiction as required by article 5 of the Convention;
(e) Appraise the Committee of the results of the investigation and judicial inquiries into the death, whilst in custody, of Mr. Kaya;
(f) Ensure that all instances of torture and especially those resulting in death, are promptly and effectively investigated by an independent body and that the perpetrators be brought immediately to justice.
124. The Committee considered the initial report of Venezuela (CAT/C/16/Add.8) at its 370th, 373rd and 377th meetings, held on 29 and 30 April and 4 May 1999 (CAT/C/SR.370, 373 and 377), and adopted the following conclusions and recommendations.
125. Venezuela ratified the Convention on 29 June 1991. It made the declarations provided for under articles 21 and 22 on 21 December 1993, and has not formulated any reservations or additional declarations.
126. Venezuela is also a State party to the Inter-American Convention to Prevent and Punish Torture.
127. The initial report was submitted with several years' delay and does not provide sufficient information on the practical application of the Convention. The Committee appreciates the assurance given by the State's representative that these shortcomings will be overcome and that the next report will be submitted on time and in the appropriate form.
128. A large and well-qualified delegation was present for the introduction of the report. The head of delegation updated and elaborated on it in his statement and through documents made available to the members of the Committee; responses were given to members' observations and questions. This procedure facilitated a more detailed examination, a better understanding of the report and a frank and constructive dialogue, for which the Committee is grateful.
129. In a declaration of principle, the head of the delegation expressed his Government's determination to be increasingly strict in the area of human rights.
130. The Code of Penal Procedure, which will enter into force shortly, contains very positive provisions that make good the deficiencies of the existing Code of Criminal Procedure; these deficiencies are identified as being highly conducive to the practice of torture and to shortcomings in its investigation and punishment. The full implementation of the new provisions should contribute to the eradication of torture in Venezuela.
131. The Government intends to submit for approval by the Legislature a bill to prevent and punish torture and cruel, inhuman or degrading treatment or punishment, in order to give effect to the provisions of the Convention in domestic law.
132. The state of emergency in force since 1994 has been terminated in the frontier districts and the restrictions on constitutional guarantees have accordingly been removed.
133. The Act intended to combat violence against women and the family has entered into force; and the Organizational Act for the Protection of Children and Adolescents has been approved, and will enter into force next year. Both laws are intended to improve the protection of two particularly vulnerable social sectors who frequently fall victim to discrimination, abuse or cruel, inhuman or degrading treatment.
134. Training initiatives have been taken for law enforcement and prison personnel and have been developed with support from foundations and non-governmental organizations; these are described in the part of the report relating to article 10 of the Convention. The Public Prosecutor's Office has taken the initiative of organizing a national programme of workshops to acquaint medical professionals with recent scientific developments in the investigation of torture, in particular torture that leaves no visible or obvious marks.
3. Factors and difficulties impeding the application of the Convention
135. The marked contrast between the extensive legislation on matters addressed by the Convention and the reality observed during the period covered by the report would appear to indicate insufficient concern on the part of the authorities responsible for ensuring the effective observance of the Convention.
136. The high number of cases of torture and cruel, inhuman or degrading treatment that have occurred since the Convention's entry into force; they have been perpetrated by all the State security bodies.
137. The failure of the competent organs of the State to fulfil their duty to investigate complaints and punish those responsible, who generally enjoy impunity; this encourages repetition of the conduct in question. Not until the report was submitted was the Committee informed of the imposition of administrative penalties, but it has not been informed of any judicial conviction for the offence of torture.
138. The continued existence in the Penal Code, the Armed Forces (Organization) Act and the Code of Military Justice of provisions exempting from criminal responsibility persons who act on the basis of due obedience to a superior; these provisions are incompatible with both article 46 of the Constitution and article 2, paragraph 3, of the Convention.
139. The non-existence of effective procedures for monitoring respect for the physical integrity of detainees in prisons, both civilian and military.
140. The overcrowding in prisons, where capacity is exceeded by over 50 per cent, the lack of segregation of the prison population, the fact that almost two thirds of prisoners are awaiting trial and the endemic violence rampant in Venezuelan jails mean that prisoners are permanently subjected to forms of inhuman or degrading treatment.
141. The prompt consideration, discussion and approval of the Bill relating to torture, whether it takes the form of a separate law or is incorporated in the provisions of the Penal Code.
142. The legislation in question must provide for the hearing and trial in the ordinary courts of any charge of torture, regardless of the body of which the accused is a member.
143. During the consideration and discussion of the Bill relating to torture, the Executive and the Legislature should request and bear in mind the opinions of national non-governmental organizations for the defence and promotion of human rights, whose experience in looking after victims of torture and cruel, inhuman or degrading treatment may help to perfect this legal initiative.
144. In the process of drafting a new constitution a provision should be included which grants constitutional status to human rights treaties ratified by the State and their self-executing nature, as has been recognized in the decisions of the Supreme Court of Justice.
145. In addition, the new constitution, through such provisions as may appear appropriate, should strengthen the legal conditions for the protection of personal security and integrity and for the prevention of practices that violate such security and integrity.
146. In connection with article 3 of the Convention, which stipulates that a person may not be expelled, returned or extradited to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture, the Committee considers that, for the purposes of the improved consideration of the advisability of applying this provision to a particular case, it would appear appropriate for questions of passive extradition to be considered at two instances, a procedure which characterizes the Venezuelan judicial system.
147. On the same question, it is recommended that the State should regulate procedures for dealing with and deciding on applications for asylum and refugee status which envisage the opportunity for the applicant to attend a formal hearing and to make such submissions as may be relevant to the right which he invokes, including pertinent evidence, with protection of the characteristics of due process of law.
148. Repeal of rules providing for exemption from criminal responsibility on the grounds that the person concerned is acting in due obedience to a superior. Although these rules are contrary to the Constitution, in practice they leave open to judicial interpretation provisions which are incompatible with article 3, paragraph 2, of the Convention.
149. Continue the human rights training initiatives for State law enforcement officials and prison personnel, and extend them to all police and security forces.
150. Establish a governmental programme aimed at the physical, psychological and social rehabilitation of torture victims.
151. The Committee considered the second periodic report of Bulgaria (CAT/C/17/Add.19) at its 372nd, 375th and 379th meetings, held on 30 April 1999 and 3 and 5 May 1999 (CAT/C/SR.372, 375 and 379) and has adopted the following conclusions and recommendations.
152. The Committee welcomes the second periodic report of Bulgaria submitted in accordance with the guidelines for the preparation of State party reports. It appreciates the information provided by the representative of Bulgaria in his introductory statement and the open and fruitful dialogue.
153. However, the Committee regrets that the second periodic report was seven years overdue.
154. The Committee notes with great satisfaction, that the State party has:
(a) Made the declarations recognizing the Committee's competence under articles 21 and 22 of the Convention;
(b) Ratified among other international and regional treaties the European Convention on Prevention of Torture and Other Inhuman or Degrading Treatments or Punishment;
(c) Abolished the death penalty;
(d) Continued to reform and amend its domestic laws in order to protect human rights;
(e) Continued its efforts to educate law enforcement officials in the field of human rights, particularly, with regard to the prohibition against torture.
155. The Committee takes note of the economic problems currently existing in Bulgaria and the adverse effect that they have on some of the reforms in progress.
156. It recalls, however, that such difficulties could never justify breaches of articles 1, 2 and 16 of the Convention.
157. The lack in domestic law of a definition of torture in accordance with article 1 of the Convention and the failure to ensure that all acts of torture are offences under criminal law.
158. The legislative and other measures are not sufficiently effective to ensure the respect of the provisions of article 3 of the Convention.
159. The lack of measures to ensure universal jurisdiction with regard to acts of torture in all circumstances.
160. The continued reporting from reliable non-governmental organizations on ill-treatment by public officials, particularly the police, especially against persons belonging to ethnic minorities.
161. The deficiencies relating to a prompt and impartial system of investigation of alleged cases of torture and the failure to bring those allegations before a judge or other appropriate judicial authority.
162. The Committee recommends that the State party:
(a) Continues its effort to implement the provisions of the Convention, particularly articles 1, 2, 3, 4, 5 and 6, by adopting the necessary legislative measures in that regard;
(b) Continues its policies and efforts to educate law enforcement personnel as well as medical personnel about the prohibition of torture;
(c) Take effective steps to put an end to practices of ill-treatment by the police which still occur;
(d) That all prisoners' correspondence addressed to international bodies of investigation or settlement of disputes be excluded from "censor checks" by prison personnel or other authorities;
(e) Submit its third and fourth periodic reports due on 25 June 1996 and 25 June 2000 respectively on 25 June 2000 at the latest.
163. The Committee considered the third periodic report of Italy (CAT/C/44/Add.2) at its 374th, 377th and 381st meetings, held on 3, 4 and 6 May 1999 (CAT/C/SR.374, 377 and 381) and has adopted the following conclusions and recommendations.
164. The Committee welcomes the timely submission of the third periodic report of Italy and thanks the representatives of the State party for their good oral presentation and their collaborative and constructive attitude in the dialogue with the Committee.
165. The Committee welcomes:
(a) The introduction in Parliament of a bill aiming at adding the crime of torture as an autonomous crime and the setting-up of a special fund for the victims of acts of torture;
(b) The introduction of a number of modifications in the regime of precautionary measures to protect arrested persons and detainees from ill-treatment or torture, such as the rule requiring that questioning outside the court has to be documented by sound or audio-visual recordings (Law No. 332 of 1995);
(c) The passing by Parliament of Law No. 40 of 6 March 1998 governing immigration and aliens, which, in particular, grants the aliens who are legally residing in the territory of the State party, parity with the Italian citizens;
(d) The assurances contained in the report that a different and new policy of accepting foreigners is to be energetically carried forward;
(e) The consideration by the Italian Parliament of a bill that accords humanitarian protection and the right of asylum and intends to institute an organic asylum regime;
(f) The fact that foreign prisoners who are granted measures alternative to detention may also be granted temporary work permits.
166. While it does not underestimate the difficulties created by the presence of a large number of foreigners of different cultures and nationalities on the Italian territory, the Committee expects that the new law on immigration along with the continued efforts on the part of the authorities will help ease the situation, especially since many of these foreigners had to flee their countries of origin due to severe conditions of unrest.
167. Despite the efforts of the authorities, the prison system remains overcrowded and lacking in facilities which makes the overall conditions of detention not conducive to the efforts of preventing inhuman or degrading treatment or punishment. In this regard, the Committee notes with concern, that reports of cases of ill-treatment in prison continued and that many of them involved foreigners.
168. The Committee is also concerned over the lack of training in the field of human rights, in particular, the prohibition against torture to the troops participating in peacekeeping operations and the inadequate number of military police accompanying them, which was responsible in part for the unfortunate incidents that occurred in Somalia.
169. The Committee recommends that:
(a) The legislative authorities in the State party proceed to incorporate into domestic law the crime of torture as defined in article 1 of the Convention and make provision of an appropriate system of compensation for torture victims;
(b) The Committee be informed of the progress and result of the judicial proceedings resulting from the incidents in Somalia;
(c) All prisoners' correspondence addressed to international procedures of investigation and settlement be excluded from "censor checks" by prison personnel or other authorities.
170. The Committee considered the second periodic report of Luxembourg (CAT/C/17/Add.20) at its 376th, 379th and 383rd meetings, held on 4, 5 and 7 May 1999 (see CAT/C/SR.376, 379 and 383), and adopted the following conclusions and recommendations.
171. The Committee welcomes the second periodic report of Luxembourg and the oral report given by the State party's representatives. It notes, however, that the report was submitted six years late.
172. The Committee takes note of the following positive aspects:
(a) The formal abolition of the death penalty;
(b) Legislation concerning the entry and residence of foreigners, which prohibits the expulsion or return of a foreigner if he is in danger of being subjected to acts of torture or cruel, inhuman or degrading treatment in another country;
(c) The proposed amendments of criminal legislation relating to: (i) the characterization of torture as a specific offence; (ii) amendment of the law on extradition in order to bring it into line with article 3 of the Convention; (iii) establishment of universal competence concerning acts of torture; and (iv) improvement of guarantees for persons held in custody.
173. The Committee has noted no factor or difficulty impeding the effective implementation of the Convention for the State of Luxembourg.
174. The Committee is concerned about the following:
(a) The excessive length and frequent use of strict solitary confinement of detainees and the fact that this disciplinary measure may not be the subject of appeal;
(b) The situation of young offenders held in Luxembourg prisons;
(c) The disciplinary regime imposed on minors held in the socio-educational centres;
(d) The fact that the report did not cover all articles of the Convention, particularly articles 11, 14, 15 and 16.
175. The Committee recommends that the State party should:
(a) Adopt the legislation defining torture in accordance with article 1 of the Convention, and consider all acts of torture as a specific offence;
(b) Introduce into law the possibility of an effective appeal against the most severe disciplinary measures imposed on detainees and reduce the severity of these measures;
(c) End, as soon as possible, the practice of placing young offenders, including minors, in the prison for adults;
(d) Ensure that the obligations arising from articles 11, 12, 14 and 15 of the Convention are duly respected;
(e) Submit its third and fourth periodic reports, due on 28 October 1996 and 28 October 2000 respectively, by 28 October 2000 at the latest.
176. The Committee considered the third periodic report of the Libyan Arab Jamahiriya (CAT/C/44/Add.3) at its 378th, 381st and 385th meetings, held on 5, 6 and 10 May 1999 (CAT/C/SR.378, 381 and 385), and has adopted the following conclusions and recommendations.
177. The Committee welcomes the timely submission of the report prepared in accordance with the guidelines of the Committee. Likewise, the Committee welcomes the oral report of the representatives of the State party and the dialogue with them.
178. The Committee wishes to reiterate its satisfaction, expressed in its conclusions when dealing with the State party's second periodic report, that the legal provisions of the State party generally conform with the requirements of the Convention.
179. Progress has been made in the efforts to improve education and information regarding prohibition against torture in the training of law enforcement personnel as well as medical personnel.
180. The Committee notes with satisfaction that application of corporal punishment has not been used in recent years.
181. The effect of the embargo on the State party, in force since 1992, which has not been lifted completely, causes severe difficulties in its economic and social life. However, such difficulties may not be invoked as justification of breaches of the provisions of the Convention, especially articles 1, 2 and 16.
182. It is a matter of concern for the Committee that neither the report nor the information given orally by the representatives of the Libyan Arab Jamahiriya provided the Committee with comments and answers that addressed substantially the subjects of concern indicated and the recommendations made by the Committee when dealing with the second periodic report of the State party in 1994. Consequently, the Committee reiterates, inter alia, the following subjects of concern:
(a) Prolonged incommunicado detention, in spite of the legal provisions regulating it, still seems to create conditions that may lead to violation of the Convention;
(b) The fact that allegations of torture in the State party continue to be received by the Committee.
183. It is a matter of concern for the Committee that, in practice, the State party had, in one incident, extradited persons to a country where there are substantial grounds for believing that they are in danger of being subjected to torture. The Committee did not agree with the State party that it was legally obliged to do so.
184. It is also a matter of concern that the wording of article 206 of the Penal Code could be an obstacle to the creation of independent human rights non-governmental organizations.
185. The Committee encourages the Libyan Government to consider making the declarations provided for under articles 21 and 22 of the Convention.
186. It also recommends that the law and the practices of the State party be brought in line with article 3 of the Convention.
187. The Committee further recommends that the Libyan authorities guarantee the free access of a person deprived of his liberty to a lawyer and to a doctor of his choice and to his relatives at all stages of detention.
188. The State party should send a clear message to all its law-enforcement personnel that torture is not permitted under any circumstances. In addition, those who committed the offence of torture should be subjected to a prompt and impartial investigation and rigorously prosecuted in accordance with the law.
189. Although corporal punishment has not been practised in recent years, it should be abolished by law.
190. The Committee considered the second periodic report of Morocco (CAT/C/43/Add.2) at its 380th, 383rd and 387th meetings, held on 6, 7 and 11 May 1999 (see CAT/C/SR.380, 383 and 387), and adopted the following conclusions and recommendations.
191. The Committee warmly welcomes the second periodic report of Morocco.
192. The report, which is in conformity with the Committee's guidelines for the presentation of periodic reports, and indeed the oral introduction by the head of the Moroccan delegation, did not evade any subject. This is a source of gratification to the Committee, which is grateful to the Moroccan delegation for the frank and constructive dialogue it has established.
193. The Committee expresses its great satisfaction at certain measures taken by the State party to fulfil its treaty obligations. These measures have, inter alia, taken the following forms:
(a) The manifest political will to establish in Morocco the genuine rule of law; this will is clearly reflected in paragraphs 4, 6-10, 16 and 17 of the report;
(b) The payment of allowances to political detainees recently released by the Moroccan State, which has also borne the cost of medical care in cases where this has proved necessary;
(c) The favourable action taken on certain of the recommendations made by the Committee when it considered Morocco's initial report, including:
(i) The publication in the Journal Officiel of the Convention, which thereby becomes applicable throughout the Kingdom and enforceable in respect of all authorities;
(ii) The implementation of a substantial human rights education and awareness programme for law enforcement officials and indeed for other categories, such as school pupils;
(iii) The reform of prison policy with the aim of achieving greater humanization.
194. The Committee considers that there are no factors or difficulties impeding implementation of the Convention in Morocco.
195. The Committee is, however, very concerned about the following questions:
(a) The persistent non-existence, in Moroccan criminal legislation, of a definition of torture fully consistent with that contained in article 1 of the Convention, and of the classification as crimes of all acts liable to be characterized as torture pursuant to article 4 of the Convention;
(b) The maintenance of the reservations expressed in respect of article 20 and the non-existence of the declarations provided for in articles 21 and 22 of the Convention; this considerably restricts the scope of the Convention in respect of Morocco;
(c) Despite the efforts made, the persistence of allegations of torture and ill-treatment;
(d) The non-conformity of Moroccan legislation with the provisions of the Convention relating to return, expulsion and extradition.
196. The Committee recommends to the State party that it should:
(a) Introduce into its criminal legislation a definition of torture fully consistent with that contained in article 1 of the Convention and classify as crimes all acts liable to be characterized as torture;
(b) Withdraw the reservations expressed in respect of article 20, and make the declarations provided for in articles 21 and 22 of the Convention;
(c) Bring the legislation on return, expulsion and extradition into line with the relevant preventions of the Convention;
(d) Initiate, urgently if such has not already been done, impartial inquiries into the serious allegations of human rights violations brought to the attention of the Moroccan delegation by the Committee on the occasion of its consideration of the second report, and ensure, in recognized cases, that appropriate penalties are imposed on those responsible and that equitable compensation is granted to the victims.
197. The Committee considered the third periodic report of Egypt (CAT/C/34/Add.11) at its 382nd, 385th and 389th meetings, held on 7, 10 and 12 May 1999 (CAT/C/SR.382, 385 and 389) and has adopted the following conclusions and recommendations.
198. The Committee welcomes the third periodic report of Egypt, submitted some two and a half years late, but generally in accordance with the requirements for such a report. The Committee also welcomes the verbal introduction to the report by the Egyptian representatives.
199. The release of large numbers of persons held under the Emergency Act, 1958.
200. The reduction of complaints of maltreatment by persons detained under the Emergency Act, 1958.
201. The broad literacy and educational programme undertaken by the Egyptian Government.
202. The creation of the Office of Human Rights in the Public Prosecutor's Department to investigate complaints of, inter alia, torture.
203. The Committee was pleased to learn of improvements in the quality of some of the Egyptian prisons.
204. The Committee was also pleased to learn that "hundreds" of torture victims have been compensated by the Egyptian civil courts.
205. The Committee is encouraged by the extensive dialogue in which it engaged with the Egyptian delegation.
206. The ongoing state of emergency in response to the persistent terrorist threat. This seems to have created a culture of violence among certain elements of the police and security forces. Such terrorist threat, of course, may not be invoked as justification for breaches of the provisions of the Convention, especially articles 1, 2 and 16.
207. The large number of allegations of torture and even of death relating to detainees made against both the police and the State Security Intelligence.
208. Despite the improvements made by the Government, the conditions of some prisons in Egypt.
209. The allegation from the World Organization against Torture of treatment of female detainees, by both the police and the State Security Intelligence, which sometimes involves sexual abuse or threat of such abuse in order to obtain information relating to husbands or other family members.
210. The Committee is seriously concerned at allegations that persons have been held in police or State Security Intelligence custody in defiance of court orders to release them.
211. The Committee recommends that Egypt take effective measures to prevent torture in police and State Security Intelligence custody and that all perpetrators be vigorously prosecuted.
212. It also recommends that effective steps be taken to protect women from threats of sexual abuse by police and officers of the State Security Intelligence as a means of obtaining information from them.
213. It further recommends that a proper registry of detainees, both police and State Security Intelligence, which is accessible to members of the public, be established and maintained.
214. The Committee encourages the Egyptian Government to continue with its policy of upgrading its prison facilities.
215. The Government of Egypt should provide the Committee with information in writing concerning the number and circumstances of deaths in custody over the past five years.
216. The Committee urges Egypt to consider making a declaration in favour of articles 21 and 22 of the Convention.
217. The Committee considered the second periodic report of Liechtenstein (CAT/C/29/Add.5) at its 384th, 387th and 389th meetings, held on 10, 11 and 12 May 1999 (CAT/C/SR.384, 387 and 389), and has adopted the following conclusions and recommendations.
218. The Committee welcomes the submission of the report which, although two and one half years overdue, was prepared in accordance with the guidelines of the Committee. The Committee likewise welcomes the oral report of the representatives of the State party and the dialogue with them.
219. There have been no reports of maltreatment of detainees during the period under review.
220. The legal provisions of the State party appear to generally conform to those required by the Convention.
221. The law and practice of Liechtenstein relating to asylum seekers appears to be in conformity with article 3 of the Convention.
222. The Committee is unaware of any factors or difficulties impeding the application of the provisions of the Convention.
223. The Committee raised no subjects of concern.
224. The Committee recommends that the State party continue to implement the terms of the Convention in the effective way in which it has done in the past.
225. It also recommends that the third periodic report be presented to the Committee in accordance with its due date.
Activities of the Committee under article 20 of the Convention
226. In accordance with article 20, paragraph 1, of the Convention, if the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State party, the Committee shall invite that State party to cooperate in the examination of the information and, to this end, to submit observations with regard to the information concerned.
227. In accordance with rule 69 of the Committee's rules of procedure, the Secretary-General shall bring to the attention of the Committee information which is, or appears to be, submitted for the Committee's consideration under article 20, paragraph 1, of the Convention.
228. No information shall be received by the Committee if it concerns a State party which, in accordance with article 28, paragraph 1, of the Convention, declared at the time of ratification of or accession to the Convention that it did not recognize the competence of the Committee provided for in article 20, unless that State party has subsequently withdrawn its reservation in accordance with article 28, paragraph 2, of the Convention.
229. The Committee's work under article 20 of the Convention thus commenced at its fourth session and continued at its fifth to twenty-second session. During those sessions the Committee devoted the following number of closed meetings or part of closed meetings to its activities under that article:
231. However, in accordance with article 20, paragraph 5 of the Convention, the Committee may after consultations with the State party concerned decide to include a summary account of the results of the proceedings in its annual report to the State parties and to the General Assembly.
Consideration of communications under article 22 of the Convention
232. Under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, individuals who claim that any of their rights enumerated in the Convention have been violated by a State party and who have exhausted all available domestic remedies may submit communications to the Committee against Torture for consideration. Forty out of 113 States that have acceded to or ratified the Convention have declared that they recognize the competence of the Committee to receive and consider communications under article 22 of the Convention. Those States are: Algeria, Argentina, Australia, Austria, Bulgaria, Canada, Croatia, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Greece, Hungary, Iceland, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Poland, Portugal, Russian Federation, Senegal, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Venezuela and Yugoslavia. No communication may be considered by the Committee if it concerns a State party to the Convention that has not recognized the competence of the Committee to do so.
233. Consideration of communications under article 22 of the Convention takes place in closed meetings (article 22, paragraph 6). All documents pertaining to the work of the Committee under article 22, i.e. submissions from the parties and other working documents of the Committee, are confidential.
234. In carrying out its work under article 22, the Committee may be assisted by a working group of not more than five of its members or by a special rapporteur designated from among its members. The working group or the special rapporteur submits recommendations to the Committee regarding the fulfilment of the conditions of admissibility of communications or assists it in any manner which the Committee may decide (rule 106 of the rules of procedure of the Committee). Special rapporteurs may take procedural decisions (under rule 108) during inter-sessional periods, thereby expediting the processing of communications by the Committee.
235. A communication may not be declared admissible unless the State party has received the text of the communication and has been given an opportunity to furnish information or observations concerning the question of admissibility, including information relating to the exhaustion of domestic remedies (rule 108, para. 3). Within six months after the transmittal to the State party of a decision of the Committee declaring a communication admissible, the State party shall submit written explanations or statements to the Committee clarifying the matter under consideration and the remedy, if any, which has been taken by it (rule 110, para. 2). In cases that require expeditious consideration, the Committee invites the States parties concerned, if they have no objections to the admissibility of the communications, to furnish immediately their observations on the merits of the case.
236. The Committee concludes examination of an admissible communication by formulating its Views thereon in the light of all information made available to it by the complainant and the State party. The Views of the Committee are communicated to the parties (article 22, paragraph 7, of the Convention and rule 111, para. 3, of the rules of procedure of the Committee) and are made available to the general public. Generally the text of the Committee's decisions declaring communications inadmissible under article 22 of the Convention are also made public without disclosing the identity of the author of the communication but identifying the State party concerned.
237. Pursuant to rule 112 of its rules of procedure, the Committee shall include in its annual report a summary of the communications examined. The Committee may also include in its annual report the text of its Views under article 22, paragraph 7, of the Convention and the text of any decision declaring a communication inadmissible.
238. At the time of adoption of the present report the Committee had registered 133 communications with respect to 19 countries. Out of them, 38 communications had been discontinued and 28 had been declared inadmissible. The Committee had adopted Views with respect to 34 communications and found violations of the Convention in 16 of them. Finally, 33 communications remained outstanding.
239. At its twenty-first session, the Committee decided to declare two communications admissible, to be considered on the merits. In addition, the Committee declared inadmissible communications Nos. 66/1997 (P.S.S. v. Canada) and 67/1997 (Akhidenor v. Canada), because they did not meet the conditions laid down in article 22, subparagraph 5 (b) of the Convention. The text of these decisions is reproduced in annex VII to the present report.
240. Also at its twenty-first session, the Committee adopted Views in respect of communications Nos. 88/1997 (Avedes Hamayak Korban v. Sweden), 91/1997 (A. v. the Netherlands), 97/1997 (Orhan Ayas v. Sweden), 100/1997 (J.U.A. v. Switzerland), 101/1997 (Halil Haydin v. Sweden) and 110/1998 (Núñez Chipana v. Venezuela). The texts of the Committee's Views are reproduced in annex VII to the present report.
241. In its Views on communication No. 88/1997 (Avedes Hamayak Korban v. Sweden), the Committee estimated that the State party had an obligation to refrain from forcibly returning the author to Iraq, his country or origin, or to Jordan, in view of the risk he would run of being expelled from that country to Iraq. The Committee came to its conclusion after considering the author's history of detention in Iraq as well as the possibility of his being held responsible for his son's defection from the army. The Committee also considered that the presentation of the facts by the author did not raise significant doubts as to the general veracity of his claims and noted that the State party had not expressed doubts in this respect either.
242. In its Views on communication No. 91/1997 (A. v. The Netherlands), the Committee found that substantial grounds existed for believing that the author would be in danger of being subjected to torture if returned to Tunisia, his country of origin. The Committee considered that the author could be tortured again in view of his past history of detention and torture, his assistance of an Al-Nahda member and his desertion from the Army.
243. In its Views on communication No. 97/1998 (Orhan Ayas v. Sweden), the Committee found that the State party had an obligation to refrain from forcibly returning the author to Turkey or to any other country where he run a real risk of being expelled or returned to Turkey. The Committee considered that, given the human rights situation in Turkey, the author's political affiliation and activities with the Kurdish Workers' Party (PKK), as well as his history of detention and torture constituted substantial grounds for believing that he would be at risk of being arrested and subjected to torture if returned to Turkey.
244. In its Views on communication No. 100/1997 (J.U.A. v. Switzerland), the Committee concluded that the information before it did not show substantial grounds for believing that the author run a personal risk of being tortured if returned to Nigeria and, therefore, no breach of article 3 of the Convention was found. It noted, inter alia, that the author had never been arrested or subjected to torture, nor had he claimed that persons in his immediate circle or individuals who participated in the events which motivated his departure from Nigeria were arrested or tortured. Furthermore, it had not been clearly established that the author was being sought by the Nigerian police or that the arrest warrant he had furnished was an authentic document.
245. In its Views on communication No. 101/1997 (Halil Haydin v. Sweden), the Committee found that the State party had an obligation, under article 3 of the Convention, to refrain from forcibly returning the author to Turkey or to any other country where he run a real risk of being expelled or returned to Turkey. The Committee reached that conclusion, inter alia, in view of the author's family background, his political activities and affiliation with the PKK, his history of detention and torture and the indications that he was still wanted by the Turkish authorities.
246. In its Views on communication No. 110/1998 (Núñez Chipana v. Venezuela), the Committee found that the State party had failed to fulfil its obligation under article 3 of the Convention not to extradite the author to Peru. It considered that, in view of the nature of the accusations made by the Peruvian authorities in requesting the extradition and the type of evidence on which they had based their request, the author was in a situation where she was in danger of being placed in police custody and tortured on her return to Peru.
247. At its twenty-second session the Committee decided to discontinue the consideration of communications Nos. 33/1995, 68/1997, 69/1997, 70/1997, 71/1997, 72/1997, 73/1997, 74/1997, 75/1997, 76/1997, 77/1997, 78/1997, 79/1997, 80/1997, 81/1997, 82/1997, 87/1997 and 109/1998. It also decided to declare two communications admissible, to be considered on the merits at a subsequent session.
248. Also at its twenty-second session the Committee declared inadmissible communication No. 62/1996 (E.H. v. Hungary) on the basis of article 22, paragraph 2 of the Convention. The text of that decision is reproduced in annex VII to the present report.
249. In the course of its twenty-second session the Committee adopted Views in respect of communications Nos. 103/1998 (A and B v. Sweden), 104/1998 (M.B.B. v. Sweden), 106/1998 (N.P. v. Australia), 112/1998 (H.D. v. Switzerland) and 120/1998 (Sadiq Shek Elmi v. Australia). The text of the Views is reproduced in annex VII to the present report.
250. In its Views on communication No. 103/1998 (A and B v. Sweden), the Committee considered that the authors, nationals of the Islamic Republic of Iran, had not substantiated their claim that they would risk being subjected to torture if they were returned to their country. The Committee therefore concluded that the decision of the State party to return the authors to the Islamic Republic of Iran did not indicate a breach of article 3 of the Convention.
251. With respect to communication No. 104/1998 (M.B.B. v. Sweden), the Committee was of the view that the information before it did not show substantial grounds for believing that the author, who claimed to have been a member of the Iranian Revolutionary Guards and deserted, run a personal risk of being tortured if he was sent back to the Islamic Republic of Iran. The Committee therefore concluded that the decision of the State party to return the author to his country of origin did not indicate a breach of article 3 of the Convention.
252. With respect to communication No. 106/1998 (N.P. v. Australia), the Committee considered that by returning the author to Sri Lanka, his country or origin, the State party would not breach article 3 of the Convention. Although the Committee considered that complete accuracy is seldom to be expected from victims of torture, it noted the important inconsistencies in the author's statements before the Australian authorities. It also noted that the author had not provided the Committee with any arguments, including medical evidence, which could have explained such inconsistencies. In the circumstances the Committee was not persuaded that the author faced a personal and substantial risk of being tortured upon his return to Sri Lanka.
253. In its Views on communication No. 112/1998 (H.D. v. Switzerland), the Committee found that the author had not furnished sufficient evidence to support his fears of being arrested and tortured if he was sent back to Turkey, his country of origin. The Committee therefore concluded that the decision of the State party to return the author to Turkey did not breach article 3 of the Convention.
254. In its Views on communication No. 120/1998 (S.S. Elmi v. Australia), the Committee found that the State party had an obligation, in accordance with article 3 of the Convention, to refrain from forcibly returning the author to Somalia or to any other country where he runs a risk of being expelled or returned to Somalia. In adopting its Views the Committee considered that given the absence of a central government in Somalia and the fact that the warring factions exercise certain prerogatives that are comparable to those normally exercised by legitimate governments, the members of those factions could fall within the phrase "public officials or other persons acting in an official capacity" contained in article 1 of the Convention. The Committee also took into consideration the situation of human rights in Somalia as well as the fact that the author's family belonged to a minority clan and had been particularly targeted in the past by one of the main clans operating in the country.
Future meetings of the Committee
255. In accordance with rule 2 of its rules of procedure, the Committee shall normally hold two regular sessions each year. Regular sessions of the Committee shall be convened at dates decided by the Committee in consultation with the Secretary-General, taking into account the calendar of conferences as approved by the General Assembly.
256. As the calendar of meetings held within the framework of the United Nations is submitted by the Secretary-General on a biennial basis for the approval of the Committee on Conferences and the General Assembly, the Committee took decisions on the schedule of its meetings to be held in 2000 and 2001.
257. At its 386th meeting on 11 May 1999, the Committee decided to hold its regular sessions for the next biennium at the United Nations Office at Geneva on the following dates:
Twenty-fourth 1-19 May 2000
Twenty-sixth 30 April-18 May 2001
Twenty-seventh 12-23 November 2001
Adoption of the annual report of the Committee
258. In accordance with article 24 of the Convention, the Committee shall submit an annual report on its activities to the States parties and to the General Assembly.
259. Since the Committee will hold its second regular session of each calendar year in late November, which coincides with the regular sessions of the General Assembly, the Committee decided to adopt its annual report at the end of its spring session for appropriate transmission to the General Assembly during the same calendar year.
260. Accordingly, at its 390th meeting held on 14 May 1999, the Committee considered the draft report on its activities at its twenty-first and twenty-second sessions (CAT/C/XXIII/CRP.1 and Add.1-8). The report, as amended in the course of the discussion, was adopted by the Committee unanimously. An account of the activities of the Committee at its twenty-third session (8 to 19 November 1999) will be included in the annual report of the Committee for 2000.
Notes
1 Official Records of the General Assembly, Forty-fifth Session, Supplement No. 44 (A/45/44), paras. 14-16.
2 Ibid., Forty-ninth Session, Supplement No. 44 (A/49/44), paras. 12-13.
States that have signed, ratified or acceded to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as at 14 May 1999
a Accession.
b Succession.
Zambia
a 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.
b Total of 40 States parties.
Second periodic reports due in 1992 (26)
Third periodic reports due in 1996 (26)
Views and decisions of the Committee against Torture under article 22 of the Convention
1. Communication No. 88/1997
Facts as presented by the author
Complaint
State party's observations
Counsel's comments
Issues and proceedings before the Committee
Views under article 22, paragraph 7, of the Convention
Facts as submitted by the author
State party's observations on the admissibility and merits of the communication
Author's comments
Submitted by: S.M.R. and M.M.R. (Names withheld) [represented by counsel]
Alleged victim: The authors
State party: Sweden
Date of communication: 5 November 1997
The Committee against Torture, established under article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 5 May 1999,
Having concluded its consideration of communication No. 103/1998, 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 authors of the communication, their counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The authors of the communication are S.M.R., her husband M.M.R. and their two children. The authors are Iranian citizens currently residing in Sweden, where they are seeking refugee status. S.M.R. and M.M.R. claim that they would risk imprisonment and torture upon return to the Islamic Republic of Iran and that their forced return to that country would therefore constitute a violation by Sweden of the Convention. They are represented by counsel.
Facts as presented by the authors
2.1 The authors state that S.M.R. has been an active member of the illegal organization the Mujahedin. Because of her political activities she has been imprisoned twice by the Iranian authorities. She was first arrested in 1982 and spent four years in the Evin-Ghezelhesar prison. She was released in May 1986 when the authorities revised old sentences. About the time of her release the Mujahedin launched a military offensive, and she was arrested again in August 1986 together with other activists who were seen as threats by the Iranian authorities. She was released in May 1990 due to lack of evidence, but she had to report regularly to the authorities for the following six months.
2.2 S.M.R. was ill-treated and tortured in prison, especially during her first imprisonment. She states that she was beaten on the soles of her feet and that she was flogged on two occasions. As a result of the flogging she was unconscious and suffered renal haemorrhage. She was treated in a hospital for two days before she was sent back to prison. She also states that she was subjected to a fake execution.
2.3 In 1991 S.M.R. resumed her work for the Mujahedin. She was a member of a group of four politically active women who produced leaflets for the Mujahedin in her home, where they met three times a week. The reason why the women always met in S.M.R.'s home was that her husband, because of his profession, had a typewriter which the women used to produce the leaflets. The authors state, however, that M.M.R. was unaware of the political activities of his wife.
2.4 S.M.R. and her children arrived in Sweden on 21 July 1995 on a valid passport, to attend the marriage of a relative. She states that at that time she intended to return to the Islamic Republic of Iran. While in Sweden she learned that her husband, who was not politically active, had been arrested by the Iranian security police in August 1995 and interrogated about the political activities of his wife. The police had informed him that the other women belonging to the political group in which S.M.R. was active had been arrested and that one of the women had revealed his wife's identity. The police had also searched the family's house and confiscated the typewriter which had been used to produce the leaflets. S.M.R. decided not to return to the Islamic Republic of Iran, where she claims she risks being imprisoned and tortured again.
2.5 S.M.R. and her two children applied for asylum on 30 November 1995. Her application was rejected by the National Immigration Board on 30 January 1996. On 25 November 1996, the Aliens Appeal Board turned down her appeal. Following an application by S.M.R., the Aliens Appeal Board decided, on 5 March 1997, not to expel her pending its decision regarding the asylum claim of her husband.
2.6 After leaving the Islamic Republic of Iran illegally with the help of smugglers, M.M.R. arrived in Sweden on 6 November 1996 and immediately applied for asylum. He was later told by his mother in the Islamic Republic of Iran that the Swedish police had informed the Iranian authorities about his illegal departure from the country. He would now risk imprisonment upon his return to his country.
2.7 The National Immigration Board rejected M.M.R.'s asylum claim on 23 April 1997. On 27 October 1997, the Aliens Appeal Board dismissed his appeal. Following the rejection of M.M.R.'s asylum claim, the Aliens Appeal Board cancelled the stay of the deportation order against S.M.R. and her children.
3.1 In view of the fact that S.M.R. has previously been imprisoned and tortured, and that her recent political activities have become known to the Iranian Government, the authors claim that there exist substantial grounds for believing that she, her husband and their children would be subjected to torture if they were returned to their country of origin. Their forced return would therefore constitute a violation by Sweden of the Convention.
3.2 The authors draw the attention of the Committee to the fact that neither the National Immigration Board nor the Aliens Appeal Board has questioned that S.M.R. had been active in the Mujahedin organization and that she had previously been imprisoned and tortured.
Observations by the State party
4.1 By its submission of 21 April 1998, the State party informed the Committee that, following the Committee's request under rule 108, paragraph 9, of its rules of procedure, the National Immigration Board had decided to stay the expulsion order against the authors while their communication is under consideration by the Committee.
4.2 The State party explained the domestic procedure applicable to the determination of refugee status. It stressed that, in accordance with the Aliens Act, an alien may never be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment, nor to a country where he/she is not protected from being sent on to a country where he/she would be in such danger. An alien who is refused entry can reapply for a residence permit if the application is based on circumstances which have not previously been examined in the case and if either the alien is entitled to asylum in Sweden or if it will otherwise be in conflict with humanitarian requirements to enforce the decision on refusal of entry or expulsion.
4.5 Regarding the admissibility of the communication, the State party submits that it is not aware of the same matter having been presented to another international instance of investigation or settlement. The State party explains that the authors can at any time file a new application for re-examination of their case with the Aliens Appeal Board, based on new factual circumstances. Finally, the State party contends that, with reference to what it says concerning the merits of the case, the communication should be considered inadmissible as incompatible with the provisions of the Convention.
4.6 As to the merits of the communication, the State party refers to the Committee's jurisprudence in the cases of Mutombo v. Switzerland Communication No. 13/1993 (CAT/C/12/D/13/1993), Views adopted on 27 April 1994. and Tapia Paez v. Sweden, Communication No. 39/1996 (CAT/C/18/39/1996), Views adopted on 7 May 1997. and the criteria established by the Committee with respect to article 3 of the Convention, first, that a person must personally be at risk of being subjected to torture and, second, that such torture must be a necessary and foreseeable consequence of the return of the person to his or her country.
4.7 The State party reiterates 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; (b) the personal risk of the individual concerned of being subjected to torture in the country to which he would be returned; and (c) the risk of the individual being subjected to torture as a foreseeable and necessary consequence of return. The State party recalls that the mere possibility that a person will be subjected to torture in his or her country of origin is not sufficient grounds for his or her return to be incompatible with article 3 of the Convention.
4.8 The State party is aware of human rights violations taking place in the Islamic Republic of Iran, including extrajudicial and summary executions and disappearances, as well as widespread use of torture and other degrading treatment.
4.9 As 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 relies on the evaluation of the facts and evidence made by the National Immigration Board and the Aliens Appeal Board. Neither found any reason to question that S.M.R. had been politically active for the Mujahedin and that she had been imprisoned in the 1980s. However, the Swedish authorities have found that some elements provided by the authors regarding S.M.R.'s recent political activities and the circumstances relating to her departure from the Islamic Republic of Iran raise doubts as to their credibility.
4.10 In its decision of 30 January 1996, the National Immigration Board noted that S.M.R. had been released from prison in 1990 for lack of evidence. As to her political activities after her release, the Board found it unlikely that the political group she claimed she was a member of held meetings and produced leaflets three times a week in her house without her husband's knowledge. The Board also found it improbable that she was wanted by the Iranian authorities because a typewriter had been found in her home. As to the circumstances of her departure, the Board noted that S.M.R. had been able to obtain a national passport in 1993 and that she had left her country of origin legally. This is an additional indication that she was not of interest to the Iranian authorities. In addition, the Board pointed out that she had waited four months in Sweden before applying for asylum.
4.11 On 25 November 1996 the Aliens Appeal Board rejected the appeal of S.M.R. and her children, adding to the findings of the National Immigration Board that she had not applied for asylum until three months after she allegedly learned that the authorities were looking for her in the Islamic Republic of Iran. In the Board's view, her explanation that she did not, until that point, realize the proportions of the authorities' interest in her was not convincing. The Board stated that the delay alone gave reason to doubt her need of protection in Sweden. The Board further stated that not only had S.M.R. been able to obtain a national passport in 1993, but she had also been able to leave the country several times, which shows that she was not of particular interest to the Iranian authorities. The Board further found not credible her statement that she had travelled to the Syrian Arab Republic at the request of the authorities in order to prove that she was a true Muslim. The Board considered that this was rather an attempt to explain the departure stamps in her passport.
4.12 M.M.R.'s application for asylum was rejected by the National Immigration Board on 23 April 1997. The Board noted that his grounds for requesting asylum were connected to his wife's political activities in the Islamic Republic of Iran, activities which had not been considered of such a nature as to justify her protection in Sweden. M.M.R.'s claim that he risked imprisonment for having left his country without a visa was not regarded as grounds for granting him protection.
4.13 The Aliens Appeal Board turned down his appeal on 27 October 1997. The Board noted that in September 1996, after the alleged detention in August 1995, he obtained a valid passport and permission to leave the country. Therefore, the Board concluded, he was not at that time of special interest to the Iranian authorities. The Board also noted that, when entering Sweden, he had stated that he had not experienced any problems of a political nature in the Islamic Republic of Iran.
4.14 The State party reiterates that it does not question S.M.R.'s statement in respect of imprisonment and ill-treatment in the past. What is called into question is whether S.M.R. has been politically active since 1991 in the manner claimed by her and therefore at risk of being tortured if she returns to Iran at this time. In this context, the State party points out several circumstances and elements in the authors' account which give rise to doubts as to S.M.R.'s alleged political activities during recent years.
4.15 Firstly, the State party asserts that, according to reliable information available to the Government, the Mujahedin has for many years been operating from outside the Islamic Republic of Iran only. Production and distribution of leaflets for the Mujahedin within the country consequently does not occur. Due to this circumstance alone, S.M.R.'s statement concerning her political activities is not credible.
4.16 The State party also underlines the findings of the National Immigration Board and the Aliens Appeal Board as to the authors' possession of passports. S.M.R. was in possession of a valid national passport and visa when entering Sweden. She obtained a passport in 1993 and had, according to the stamps in it, left Iran on several occasions before travelling to Sweden. In the initial investigation following her application for asylum, S.M.R. stated that she had turned in her passport to the authorities in 1995 in order to have her youngest child registered in it. She further stated that when she applied for a new passport she was requested by the authorities to travel to Syria in order to prove that she was a true Muslim. The State party finds, in accordance with the findings of the Boards, that this statement is not credible but rather a construction devised to explain the departure stamps in her passport. These circumstances contradict the assertion that she was of special interest to the Iranian authorities at the time of her departure. The State party also underlines the facts that M.M.R., after he had allegedly been detained in August 1995, stayed in the Islamic Republic of Iran for more than a year, that he had obtained a valid passport and that he declared, when entering Sweden, that he did not have any problems of a political character in his country of origin.
4.17 Finally, the State party draws the attention of the Committee to the fact that S.M.R. has not been able to give any reasonable explanation as to why she waited for more than four months before applying for asylum in Sweden. The State party maintains that her explanation is not convincing, especially as she alleged that her husband was arrested two weeks after her arrival in Sweden.
4.18 In the State party's view the decisive element in this case, in making the risk assessment under article 3 of the Convention, is the credibility that can be attached to the statements made by the authors of the communication. In view of the circumstances recounted above, the State party considers that S.M.R. and M.M.R. have not substantiated the claim that they would run any particular personal risk of being detained and tortured if they were to return to the Islamic Republic of Iran.
4.19 The State party concludes that, in the circumstances of the present case, the authors' return to the Islamic Republic of Iran would not have the foreseeable and necessary consequence of exposing them to a real risk of torture. An enforcement of the expulsion order against the authors would therefore not constitute a violation of article 3 of the Convention.
5.1 Counsel recalls that the State party does not in any way question that S.M.R. has been imprisoned and tortured in the past. He also points out that the State party is aware of the serious human rights violations occurring in the Islamic Republic of Iran, including the widespread use of torture, and concludes that there are substantial risks that S.M.R. would face torture again if returned to the country.
5.2 Counsel further argues that the act of deporting a person to a country to which she fears to return owing to having previously been tortured, is in itself an act of torture or other cruel, inhuman or degrading treatment or punishment.
5.3 Finally, counsel refers to a certificate submitted by a psychiatrist at the Swedish Red Cross centre for tortured refugees in Stockholm, according to which S.M.R.'s statements regarding imprisonment and torture clearly are based on her own personal experiences. The psychiatrist further states that in his view, S.M.R.'s account of how, after her release from prison in 1990, she pursued her political activities and her fear of being persecuted by the Iranian authorities are credible and genuine.
Committee's decision on admissibility
6.1 At its twenty-first session, the Committee considered the admissibility of the communication. It ascertained that the same matter had not been and was not being examined under another procedure of international investigation or settlement, and considered that all available domestic remedies had been exhausted in view of the fact that no new circumstances existed on the basis of which the authors could file a new application with the Aliens Appeal Board. Accordingly, it decided that the communication was admissible.
6.2 The Committee noted the information given by the State party that the Immigration Board had stayed the enforcement of the expulsion order against the authors, pending the Committee's final decision on the communication.
6.3 The Committee further noted that both the State party and the author's counsel had provided observations on the merits of the communication, and that the State party had requested the Committee, if it were to find the communication admissible, to proceed to the examination of the merits of the communication. Nevertheless, the Committee considered that the information before it was not sufficient to enable it to adopt its Views at that stage. Accordingly, it decided to request both parties to make additional submissions within three months, with a view to examining the merits of the communication at the Committee's twenty-second session.
6.4 In particular, the Committee decided to request from the authors' counsel additional information about the nature of S.M.R.'s political activities after 1990 and the current situation of the other members of the political group to which she belonged. Likewise, the Committee requested clarifications from the State party and the authors' counsel as to the circumstances relating to the authors' departure from the Islamic Republic of Iran and entry into Sweden, as well as their obtaining of passports. Clarifications were also requested regarding the authors' statement that Swedish police authorities had informed the Iranian authorities about the illegal departure of M.M.R. from the country.
6.5 Under rule 110, paragraph 3, of the rules of procedure, the Committee further requested the State party not to return the authors to Iran while their communication is under consideration by the Committee.
Additional information submitted by the State party
7.1 In response to the Committee's request regarding the circumstances of the authors' departure from the Islamic Republic of Iran, entry into Sweden and obtaining of passports, the State party submits that the information it provided is based on the authors' own statements to Swedish immigration authorities. S.M.R.'s passport was issued on 10 May 1993 with validity until 10 May 1996. She applied for a visa in January 1995 in order for her and her two children to visit her brother in Sweden. They were granted entry visas valid for 30 days with departure from Sweden not later than 17 September 1995. She arrived in Sweden on 21 July 1995.
7.2 S.M.R. has stated that she obtained her passport without difficulty. In March 1995 she returned it to the authorities in order to have her youngest child registered on it. After being informed that her name resembled the name of a person who was not permitted to leave the country, she was requested to report to the prosecution authority. The prosecution authority discovered that her name was miswritten and decided not to return her passport to her. When she applied for a new passport the authorities made it a condition that she first travel to Syria. The trip was arranged by the authorities as a test in order to prove that she was a true Muslim supporting the regime. The authorities made it an additional condition that she turn in the certificate of registration of title of her house before the trip. Her passport was returned a week before she travelled to Syria with her husband and children.
7.3 The State party maintains that S.M.R.'s statement concerning her trip to Syria is not credible, but rather an attempt to explain the departure stamps in her passport. It notes that her husband has not mentioned anything about a trip to Syria, nor has he mentioned anything about a passport he must have been in possession of in order to travel to Syria.
7.4 According to reliable sources, a valid passport and an exit visa are required in order to be allowed to leave the Islamic Republic of Iran. Persons convicted of a serious crime or under suspicion of such a crime or under surveillance for other reasons are not allowed to leave the country. Since S.M.R. had no difficulties in obtaining a passport as well as a visa and leaving the country, it is unlikely that she was of any special interest to the Iranian authorities at the time of her departure. On the other hand, her husband, who was allegedly arrested and interrogated, was released after a week and stayed in the country for more than a year thereafter. Further, he obtained a valid passport, issued on 30 September 1996, and a permit to leave the Islamic Republic of Iran. Obviously, the Iranian authorities had no special interest in him either at the time of his departure in 1996.
7.5 M.M.R. arrived in Sweden without an entry visa. In the initial interrogation following his application for asylum he stated that he had obtained his passport without any difficulties, that he had not experienced any problems of a political nature in the Islamic Republic of Iran and that his intention was to reunite with his wife and children. He also stated that he had not applied for an entry visa because he was convinced that he would not obtain one. Therefore, he paid a smuggler who bought him a ticket and helped him to pass through the gates at the airport in Tehran.
7.6 The State party contests M.M.R.'s statement that the Swedish police informed the Iranian authorities about his illegal departure from Iran. However, due to M.M.R.'s lack of a valid entry visa, the Swedish police authorities informed Iran Air of his arrival in Sweden. That was done in accordance with provisions of the Aliens Act aimed at inducing carriers to make thorough checks of passengers' travel documents in order to avoid their arrival in Sweden undocumented.
7.7 The State party has obtained information according to which a person who returns to the Islamic Republic of Iran after leaving the country illegally risks a fine and can be taken into custody for three days at the most. The State party has, however, no information indicating that Iranian citizens who have been expelled from Sweden have been subjected to ill-treatment upon their return to the country. The State party calls into question whether the Iranian authorities would consider M.M.R.'s departure as illegal, in view of the fact that he was holding a valid passport, he passed the departure controls and was allowed to travel by Iran Air.
7.8 Finally, the State party indicates that the enforcement of the expulsion order against the authors has been stayed pending the Committee's final decision on the matter.
Additional information submitted by counsel
8.1 In response to the Committee's request for clarifications regarding the nature of S.M.R.'s political activities after 1990, counsel states that she was in charge of typing texts that she received from the leader of her group. Once typed, the texts were copied and distributed by others in the form of leaflets. The group had four members and they met two or three times a week when M.M.R. was not at home. These activities continued until S.M.R. left the Islamic Republic of Iran. When she left for Sweden her intention was to return and continue her political activities. While in Sweden S.M.R. has continued to work for her organization by participating in administrative tasks and the preparation of a newspaper. She has also taken part in demonstrations.
8.2 S.M.R. has had no contacts with the members of her group in the Islamic Republic of Iran. She has nevertheless been informed by her organization that they have been arrested and that the leader was sentenced to 10 years of imprisonment. When M.M.R. was arrested he was shown a picture of the leader and asked if he recognized her. The other members of the group were not mentioned to him.
8.3 As to the clarifications concerning S.M.R.'s passport, counsel states that she applied for a passport three years after her release from prison. She had no intention of using it but she wanted to check whether it was possible for her to obtain one. According to the law, she should have been interrogated at court after her application. In fact she was not, and the passport was sent to her within 24 hours. When S.M.R. requested to have her child registered in the passport the authorities found that she was not entitled to have one and was forbidden to leave the country. She had to go to a court, where she was questioned about her activities and her reasons for leaving the country. She replied that she wanted to attend her brother's wedding. She was then told that somebody had to be responsible for her and that her first trip abroad had to be to an Islamic country. For that reason she travelled to Syria with her husband and child. In order to obtain a permit to leave for Sweden she had to put up the family's house as guarantee of her return.
8.4 M.M.R. obtained his passport without difficulty. He had not had any problems with the authorities for a long time. He was arrested and released after one to two weeks, since he had not committed any crime. At that time he did not believe that his wife was in Sweden; he therefore suggested that the authorities ask the travel agent where she had gone. Upon his leaving the country he paid a Pakistani citizen to help him to enter the plane without being checked. The airline is responsible for checking that passengers have valid visas; this might be the reason why the Swedish authorities contacted the Iranian authorities. Iranian revolutionary guards visited M.M.R.'s mother and asked her about his leaving the country without a visa. She replied that she did not know anything about it.
Examination of the merits
9.1 The 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.
9.2 The issue before the Committee is whether the forced return of the authors to 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/she would be in danger of being subjected to torture.
9.3 The Committee must decide, pursuant to paragraph 1 of article 3, whether there are substantial grounds for believing that the authors 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 paragraph 2 of article 3, 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 they 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 return to that country; specific grounds must exist 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 cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.
9.4 In the case under consideration the Committee notes the State party's statement that the risk of torture should be a "foreseeable and necessary consequence" of an individual's return. In this respect the Committee recalls its previous jurisprudence Communication No. 101/1997 (CAT/C/21/D/101/1997), Views adopted on 20 November 1998. that the requirement of necessity and predictability should be interpreted in the light of 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).
9.5 The Committee does not share the view of the National Immigration Board that it is unlikely that S.M.R. held regular meetings at her home without her husband's knowledge. Furthermore, the Committee has no reasons to question S.M.R.'s credibility regarding her past experiences of detention, her political activities and the way in which she obtained a passport. However the Committee considers, on the basis of the information provided, that the political activities that S.M.R. claims to have carried out after 1991, inside and outside the Islamic Republic of Iran, are not of such a nature as to conclude that she risks being tortured upon her return. The Committee notes, in particular, that after M.M.R.'s release he was not further questioned about his wife's activities and whereabouts, neither was he molested by the Iranian authorities. Moreover, there is no indication that an arrest order has been issued against S.M.R. Counsel submits that the other members of her group were arrested and that the head of the group was sentenced to imprisonment. No information is provided, however, as to the grounds for her conviction and there is no indication that the women were subjected to torture or ill-treatment.
9.6 The Committee further considers that the fact that M.M.R. left the Islamic Republic of Iran without a visa to enter Sweden does not constitute an additional argument to conclude that the authors risk being tortured if they return. No evidence has been provided to the Committee that such an act is punished in the Islamic Republic of Iran with imprisonment, let alone torture.
9.7 The Committee notes with concern the numerous reports of human rights violations, including the use of torture, in the Islamic Republic of Iran, but 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 is returned. In the light of the foregoing, the Committee deems that such a risk has not been established.
9.8 On the basis of the above considerations the Committee considers that the information before it does not show substantial grounds for believing that the authors run a personal risk of being tortured if they return to the Islamic Republic of Iran.
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 decision of the State party to return the authors to the Islamic Republic of Iran would not constitute a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the English text being the original version.]
Submitted by: M.B.B. (name withheld)
Alleged victim: The author
Date of communication: 12 December 1997
Having concluded its consideration of communication No. 104/1998, 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 and the State party,
1. The author of the communication is M.B.B., an Iranian national born in 1965, at present seeking asylum in Sweden. He claims that he risks being tortured and executed if he is forced to return to the Islamic Republic of Iran. No article of the Convention is specifically invoked in the communication. The author is not represented by counsel.
2.1 The author states that his father is an orthodox Iranian Muslim and a supporter of the Iranian regime. Through his influence the author was drafted by the Iranian Revolutionary Guards (Pasdaran) and fought for three years in the front lines. While working as a revolutionary guard, the author also had a normal civil job as a mechanic in Isfahan, in order to conceal his involvement with the Pasdaran from his family. He was issued with an identity card as a member of the National Guard.
2.2 The author states that his situation became very difficult when he refused to perform certain tasks assigned to him. For that reason he decided to leave for Sweden, where his mother and stepfather were living. He left the country on a valid passport, which he obtained by paying a large amount of money, and a tourist visa that his stepfather helped him to obtain. He arrived in Sweden on 26 October 1995 in poor psychological condition. On 10 January 1996, he applied for asylum. His application was dismissed by the Swedish Board of Immigration on 5 September 1996. The Aliens Appeal Board turned down his appeal on 21 April 1997.
2.3 In June 1996, the author converted to Christianity. Members of his family who are still living in the Islamic Republic of Iran informed him that the Pasdaran had issued a warrant of arrest and that the Supreme Court had issued an order of execution against him.
3.1 In view of his past involvement with the Pasdaran and his conversion to Christianity the author fears that he will be subjected to torture and executed upon his return to the Islamic Republic of Iran.
4.1 On 19 January 1998 the Committee, acting through its Special Rapporteur for new communications, transmitted the communication to the State party for comments and requested the State party not to expel or deport the author to the Islamic Republic of Iran while his communication was under consideration by the Committee. In a submission on 29 June 1998 the State party informed the Committee that, on 21 January 1998, the Swedish Immigration Board had decided to stay the enforcement of the expulsion until further notice, pending the Committee's final decision on the matter.
4.2 With respect to the admissibility of the communication, the State party states that it is not aware of the present matter having been or being the object of any other procedure of international investigation or settlement. It also states that chapter 2, section 5 (b), of the Aliens Act provides for a re-examination of the permit issue. A new request for a residence permit may be lodged with the Aliens Appeals Board at any time. Such a request must always be considered by the Board, provided that there are new circumstances that could call for a different decision. Finally, the State party, with reference to its submission on the merits, maintains that the communication should be considered inadmissible as being incompatible with the provisions of the Convention.
4.3 As for the merits, the State party provides the following information and assessment.
4.4 The author submitted an application for residence and a work permit to the Swedish Embassy in Tehran on 18 May 1995. On that occasion he indicated that he was a "retired National Pasdar Guard". He entered Sweden on 26 October 1995 on a visa valid for 90 days and travelled with a valid Iranian passport. He did not apply for asylum until 10 January 1996. His spouse and three children remain in the Islamic Republic of Iran.
4.5 During the initial investigation following the author's first request for asylum he stated that he had worked at a "Sepah-Pasdaran" and his duties were to spy on the anti-revolutionary forces in Iranian Kurdistan. In the course of his work he was given training in methods of torture, and he mistreated people. He also took part in executing people without trial. Since he was not considered mentally strong enough to carry out torture he was ordered to obtain information about opponents of the regime and to hand it over to the authorities. He also stated that he had not been able to tell his spouse and children about his work and that he left the Islamic Republic of Iran because he could not bear his work any longer. Since members of the military are not allowed to have passports legally, he obtained one through bribery. He did not know anything about an exit permit. He converted to Christianity on 23 July 1996. Finally, he said that if he returned home he would be in danger of execution.
4.6 On 5 September 1996 the National Immigration Board rejected the author's application for asylum. The Board noted that he had travelled on a valid Iranian passport and exit permit, which means that at the time of his departure he was not of particular interest to the Iranian authorities. The Board considered that this fact was further supported by the author's earlier application for a residence permit, in which he had stated that he no longer worked for the Pasdaran. The Board found it extremely unlikely that he would be allowed to leave the country if, at that point in time, he was active in the military service in the way he described. The information on how he bribed a person at the airport at the time of his departure was deemed not to be credible.
4.7 Moreover, the Board pointed out that the author waited over two months before applying for asylum, which is an indication that he did not regard his situation in his home country as particularly serious. Consequently, the Board did not find his claim that he runs the risk of arousing the authorities' special interest on his return to be credible. The Board concluded that there were no reasons to believe that by returning to his home country, the author would risk exposure to the kind of persecution or harassment that would constitute grounds for asylum. The Board did not find any other reason for granting a residence permit. It considered that the kind of activities that the author said he took part in, inter alia, executing people without trial, are crimes against humanity as referred to in article 1 F of the 1951 Convention relating to the Status of Refugees. Regardless of any judgement about his credibility, such a circumstance is sufficient reason to refuse asylum, in accordance with the 1951 Convention.
4.8 In his appeal to the Aliens Appeals Board the author maintained that he had been a so-called special agent. He submitted copies of two identity cards to the police in Boras in January 1996. One of the cards, which was issued by a competent authority, shows that he had terminated his service as a special agent, although in fact he had not. The second card shows that he was still employed and active as a special agent. This card was exclusively intended for national use. He further stated that in the Islamic Republic of Iran people who have opposed the regime, been drug traffickers or carried on other undesired activities may be "got rid of" without a trial and that he used to receive orders from his superiors that a certain undesired person should disappear. From 1988 to 1992, he was part of a group within Sepha which carried out activities in that context in Kurdistan and Khozestan. During the years from 1992 to 1996, he underwent further training at a school of torture. However, he did not himself inflict torture on prisoners but only had to "watch". On some 40 occasions he executed punishment in the form of whipping. By means of substantial bribes to a member of Sepha, he was able to leave his country with a valid passport, despite the fact that he was not entitled to leave the country.
4.9 The author further contended that the assertion in the decision of the National Immigration Board that he had retired was not correct, since he was too young to retire. He had waited for two months before applying for asylum after his arrival in Sweden because he was very depressed. However, he contacted the police as soon as he began to feel better. For many years he had felt a strong attraction to Christianity. In Sweden, he attended tuition at St. Andrews Church in Gothenburg and converted to Christianity on 23 June 1996. If it should come to the knowledge of the Iranian authorities that he had converted to Christianity, it would mean certain death. He is very concerned about his children and his spouse since he does not know what their situation is. The family may be punished because of his desertion.
4.10 On 21 April 1997, the Aliens Appeals Board turned down his appeal. The Board stated that it could be seen from the author's passport that he underwent the usual passport control in Tehran airport, which meant that he was not of particular interest to the authorities at the time of his departure. The Board also noted that persons who leave from Tehran airport undergo strict controls. The claim that he was only able to leave with the aid of bribes was therefore not deemed reasonable. At the same time the Board did not find the claim that he was active within the armed forces and therefore under a prohibition to travel at the time of his departure to be credible.
4.11 The Board also pointed out that the author waited for more than two months after entering Sweden before applying for asylum which suggests that he did not feel a great need for protection when he arrived. Regarding his conversion, the Board considered that a convert does not run any significant risk of harassment by the authorities as a result.
4.12 On 30 October 1997 the Aliens Appeals Board examined a new application for asylum filed by the author, with which he submitted a document, dated 11 June 1996, which he claimed had recently been given to him by an acquaintance and had been obtained through bribes. He asserted, inter alia, that the document had been drawn up by a "prosecutor at the revolutionary court centre in the Islamic Republic of Iran" and proved that the author was wanted in his country of origin. This was a later development since he was clearly not wanted by the police when he left.
4.13 The author subsequently submitted a copy of a judgement dated 15 July 1996 which he claimed had been drawn up by the supreme military tribunal. He stated that the crimes he is guilty of are that he left his position as a security officer in Sepah, joined groups that oppose Islam, endangered the security of the State and unlawfully left the country. He stated that he had received the document in question by post from the Islamic Republic of Iran.
4.14 On 10 July 1997, the Board decided to stay the enforcement of the refusal of entry decision. It then made arrangements for an investigation of the judgement through the Swedish Embassy in Tehran.
4.15 In a statement dated 4 September 1997, the Embassy concluded that the judgement and the document from the prosecution authority were clear forgeries. After having been informed of the Embassy's communication, the author wrote to the Board insisting that he had given truthful information that he was not aware that the documents were not genuine. He also insisted that he risked capital punishment if he returns.
4.16 In its decision of 30 October 1997 the Board did not find cause to make any other assessment than the one which was presented in the Embassy's communication. In an overall assessment of the material presented together with what had previously emerged in the case, the Board found that the circumstances did not confirm that the author was in need of protection under the Aliens Act. Furthermore, the Board did not find grounds to consider that an enforcement of the expulsion would be contrary to humanitarian requirements. It therefore rejected the new application.
4.17 The State party argues that in determining whether article 3 of the Convention applies in a particular case 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 and of itself determinative; (b) the individual concerned must be personally at risk of being subjected to torture in the country to which he would be returning; and (c) "substantial grounds" in article 3 (1) means that the risk of the individual being tortured if returned is a "foreseeable and necessary consequence".
4.18 The State party is aware that the Government of the Islamic Republic of Iran is reported to be a major abuser of human rights. It leaves it to the Committee to decide whether there exists at present a consistent pattern of gross, flagrant or mass violations of human rights in the country.
4.19 Regarding the personal risk of being subjected to torture in the Islamic Republic of Iran the State party contends that several provisions in the Aliens Act reflect almost exactly the principle laid down in article 3 of the Convention. In applying article 3, therefore, the Committee is carrying out virtually the same test as the Swedish authorities. In making this test it should be taken into account that a mere possibility of torture cannot in itself be sufficient to constitute a violation of article 3 of the Convention. The risk must be substantiated with regard to the circumstances and the asylum-seeker's personal conditions insofar as they can be objectively certified.
4.20 In the present case the Swedish authorities have clearly found no substantial grounds for believing that the author would be at risk of being subjected to torture upon his return to Iran. The State party shares the assessment made by the Swedish authorities in this respect and would like to point out certain circumstances which are considered to be of special importance in this context.
4.21 Firstly, the author travelled from Iran on a valid Iranian passport and with an exit permit. It may be seen from the author's passport that he underwent the usual passport control in connection with his departure from Tehran airport. In the light of the Government's knowledge of departure controls at Tehran airport, this means that he was not of particular interest to the authorities at the time of his departure. This conclusion is further supported by the author's earlier application for a residence permit in which he had stated that he no longer worked for the "Pasdaran". It is extremely unlikely that he would be allowed to leave if at that point he was active in the military service in the way he described. Special permission issued by the Iranian authority concerned is required for military personnel to leave. Thus, the claim that he was active within the armed forces and therefore under a prohibition to travel at the time of his departure are not credible. These circumstances conflict with the assertion that the author is of particular interest to the Iranian authorities.
4.22 Finally, the communication from the Embassy of Sweden in Tehran clearly shows that the document submitted by the author in the form of a judgement by the Supreme Court and a search warrant from the prosecution authorities were manifest forgeries. This too gives cause for doubt and undermines the author's general credibility. Moreover, the author waited over two months before applying for asylum which indicates that he did not regard his situation in his home country as particularly serious. Nothing in this matter supports the author's claim that he would be at risk of being subjected to torture or other form of ill-treatment upon his return.
4.23 Finally, the information which the author has provided about what happened to him in the Islamic Republic of Iran and in other respects does not demonstrate that the risk of detention or torture is a foreseeable and necessary consequence of his return.
4.24 The State party thus maintains that in the present case substantial grounds do not exist for believing that the author would be in danger of being subjected to torture. An enforcement of the expulsion order would therefore, in the present circumstances, not constitute a violation of article 3 of the Convention.
5.1 In his comments on the State party's submission the author claims that he never said that he was a "retired National Pasdar Guard" and that the misunderstanding may be due to a poor translation. He insists that he is a Pasdar Guard, as the identity card he gave to the Swedish immigration authorities attests.
5.2 Before the tourist visa was granted his sponsor in Sweden had explained to the Swedish authorities that the author wanted to leave his country of origin because he was a member of the Pasdar Guard and wished to convert to Christianity. Therefore, the immigration authorities knew that the author was coming to Sweden for permanent residence. Moreover, the State party itself has acknowledged that the author had submitted an application for residence and a work permit to the Swedish Embassy in Tehran on 18 May 1995. The delay in applying for asylum, once he was in Sweden, was due to serious illness. The police officer in Boras who interviewed him noticed that he was seriously ill.
5.3 The author denies having said to the immigration authorities that he had whipped, inflicted other kinds of ill-treatment on or participated in extrajudicial executions of people and states that he left his country of origin precisely because he did not want to commit criminal acts. He claims that the misunderstanding on this issue was also due to a poor translation.
5.4 The State party states that the author submitted copies of two identity cards to the police in Boras. The author contends, however, that he submitted the originals, not copies, and that these cards were undeniable evidence that he was a member of the Sepah Pasdar Guard until he left the country. It is also undeniable that if a member of the Pasdar Guard flees the country he will be punished with death, even if he remains outside the country.
5.5 The author contests the State party's statement that persons converting from Islam to Christianity are not at risk in the Islamic Republic of Iran and states that some converts have even been executed recently. He also complains about the Swedish authorities having informed the Iranian authorities about his application for asylum, since that would expose him to further risk.
5.6 With respect to the observation by the State party that an Iranian citizen has to pass strict controls at Tehran airport, the author argues that this is true only if the person has been reported as suspicious. A Pasdar guard may, on the contrary, enjoy certain privileges at the airport.
5.7 With respect to the documents found to be forgeries, the author argues that he himself is not sure that these documents are authentic but that he cannot be held responsible for authenticity of documents he has received from Iran. He further complains about the Swedish authorities having informed the Iranian authorities that the documents were false and had been obtained through bribes.
5.8 In a further submission the author informed the Committee that on 16 December 1998 he filed another appeal with the immigration authorities that was also rejected.
6.1 Before 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 domestic remedies have been exhausted and finds that no further obstacles to the admissibility of the communication exist. Since both the State party and the author's counsel have provided observations on the merits of the communication, the Committee proceeds with the consideration of those merits.
6.2 The issue before the Committee is whether the forced return of the author 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 would be in danger of being subjected to torture.
6.3 The Committee must decide, pursuant to paragraph 1 of article 3, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to paragraph 2 of article 3, 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 return to that country; specific grounds must exist 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 cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.
6.4 In the case under consideration the Committee notes the statement of the National Immigration Board that the author was not entitled to asylum in accordance with the Convention relating to the Status of Refugees in view of the fact that he had admitted having committed the kind of crimes referred to in article 1 F of the said Convention. The Committee recalls, however, that unlike the provisions of the above Convention, article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment applies irrespective of whether the individual concerned has committed crimes and the seriousness of those crimes. On the other hand, the legal status of the individual concerned in the country where he/she is allowed to stay is not relevant for the Committee.
6.5 The Committee further notes the State party's argument that "substantial grounds" in article 3, paragraph 1, of the Convention means that the risk of the individual being tortured if returned is a "foreseeable and necessary consequence". In this respect the Committee recalls its previous jurisprudence Communication No. 101/1997 (CAT/C/21/D/101/1997), Views adopted on 20 November 1998. that the requirement of necessity and predictability should be interpreted in the light of 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).
6.6 In the present case, the Committee notes that the author has provided it with an account of his activities which differs in many respects from the one he provided to the Swedish authorities. In the Committee's view, the important disparities cannot fully be explained by "poor translations", as suggested by the author, and raise doubts about his credibility. The author's credibility is further undermined by the fact that he provided the Swedish authorities with copies of an arrest warrant issued by a prosecutor and a judgement drawn up by the supreme military tribunal of the Islamic Republic of Iran, which turned out to be forgeries. In these circumstances the Committee finds that the author has not substantiated his claims that he is at risk of being tortured if he returns to his country of origin.
6.7 The Committee further notes that the author has also failed to substantiate his claim that deserters from the Pasdaran who leave the country, as well as converts to Christianity in general, face a real risk of being subjected to torture, especially if, in the case of the latter, they are not prominent members of the Christian community.
6.8 The Committee notes with concern the numerous reports of human rights violations, including the use of torture, in the Islamic Republic of Iran, but 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 is returned. In the light of the foregoing, the Committee deems that such a risk has not been established.
6.9 On the basis of the above considerations the Committee considers that the information before it does not show substantial grounds for believing that the author runs a personal risk of being tortured if he is sent back to the Islamic Republic of Iran.
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, concludes that the decision of the State party to return the author to Iran does not constitute a breach of article 3 of the Convention.
[Text adopted in English (original version) and translated into French, Russian and Spanish.]
Submitted by: N. P. (Name withheld)
State party: Australia
Date of communication: 25 December 1997
Meeting on 6 May 1999,
Having concluded its consideration of communication No. 106/1998, submitted to the Committee against Torture under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
1. The author of the communication is N. P., a Sri Lankan of Tamil ethnic origin, currently residing in Australia where he has applied for asylum and is at risk of expulsion. He alleges that his expulsion would constitute a violation of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is represented before the Committee by his cousin, Mahendra Nirajah.
2.1 The author comes from Manipay, in the northern part of Sri Lanka. He claims that, even as a young boy, he was obliged to assist the Tamil separatists, the Liberation Tigers of Tamil Eelam (LTTE), in various ways, such as distributing their newspapers, selling publications and encouraging students to attend their meetings.
2.2 In the course of a military offensive conducted in the north of the country in 1987, In the author's communication the incident in question was said to have taken place in 1982. a landmine exploded near his family's house and some soldiers were killed. As a result, the author was detained for 20 days, tortured and deprived of family visits. In 1988, the anti-LTTE group EPRLF, operating in collusion with the Sri Lankan army, came to the author's school and warned the students against supporting the LTTE. The author was singled out, brought to a EPRLF camp and tortured before he was released. In 1989, clashes between Tamil militants and the Sri Lankan army resulted in frequent shelling and aerial bombings in the area of Manipay. The author's house was destroyed and the family became displaced, living in different refugee camps in the region.
2.3 Subsequently, the author started working in Colombo as a computer instructor. He was again forced to assist the LTTE and was detained several times and interrogated. In 1994 he was caught up in a cordon and search operation and held in detention for 17 days together with eight other Tamils. The author states that he was kept in a dark room except during interrogation, when strong lights were flashed upon his face. The author was allegedly beaten, not given proper food and subjected to sleep deprivation. He had to sleep on the floor, but as soon as he fell asleep buckets of water were thrown over him to keep him awake. The detainees were subsequently released with a severe warning.
2.4 The author states that after this incident, he tried to discontinue his association with the LTTE, but the organization's demands did not cease. He did not dare to report anything to the police for fear of reprisals against his family in Jaffna. He assisted in the purchase of computer equipment and other materials. In early 1997 he was contacted by an LTTE member who requested him to provide accommodation for the night. The man left early the next morning but was later arrested by the police, to whom he revealed the author's name. The author states that the police came to his workplace. Suspecting that they were searching for him, he managed to leave unseen. Fearing that his activities had become known to the authorities, the author contacted an agent who arranged for his travel to Australia via Singapore with a false passport.
2.5 The author arrived in Australia on 17 March 1997 and applied for a protection visa on 21 March 1997. The application was rejected by the Department of Immigration and Multicultural Affairs on 3 June 1997. The Refugee Review Tribunal (RRT) turned down his appeal on 28 July 1997. Subsequent appeals, including an application based on new information and a psychological assessment report, were considered inadmissible by the Department of Immigration and Multicultural Affairs, the Minister of Immigration and Multicultural Affairs and the Federal Court.
3.1 The author fears that he will be arrested, tortured and killed by the army if he returns to his country. He argues that he has attracted the attention of the Sri Lankan police, military and pro-Government militant groups as a suspected supporter or member of the LTTE. In view of his past experiences, including torture, he cannot ask for the protection of the Sri Lankan authorities. He therefore submits that his forced return to Sri Lanka would constitute a violation by Australia of article 3 of the Convention.
3.2 The author further states that in view of the fact that he has previously been subjected to torture and is most probably suffering from a post-traumatic stress disorder, No medical evidence submitted. even the possibility of detention and interrogation in the future would entail such emotional and physical pain that it would amount to persecution.
4.1 On 20 February 1998 the Committee, acting through its Special Rapporteur for new communications, transmitted the communication to the State party for comments and requested the State party, under rule 108, paragraph 9, of the rules of procedure, not to expel the author while his communication is under consideration by the Committee.
4.2 By a submission of 1 September 1998, the State party informed the Committee that, following its request under rule 108, paragraph 9, the author would not be expelled from Australian territory until the case had been examined by the Committee. In view of the circumstances of the author's case, it was likely that he would remain in immigration detention until that time; the Committee was therefore requested to examine the communication as soon as possible. The State party challenged the admissibility of the communication, but also addressed the merits of the case.
A. Observations on admissibility
4.3 With respect to admissibility the State party submits that the communication is inadmissible because it lacks the minimum substantiation that would render it compatible with the Convention, in accordance with the jurisprudence of the Committee. Communication No. 18/1994, X v. Switzerland; Communication No. 17/1994, X v. Switzerland; Communication No. 31/1995, X and Y v. the Netherlands. It notes the Committee's general comment on the implementation of article 3, according to which it is the responsibility of the author to establish a prima facie case for the purpose of admissibility of his or her communication. General comment by the Committee against Torture on the implementation of article 3 in the context of article 22 of the Convention against Torture dated 23 November 1997 (A/53/44, annex IX). In the State party's view, where there is question of possible refoulement there is a particular onus on the author to substantiate and convincingly plead a prima facie case. Unlike allegations relating solely to events on the territory of the responding State party, refoulement cases by their very nature are concerned with events outside the State party's immediate knowledge and control. The evidence of the author and alleged victim assumes greater importance.
4.4 The State party argues that the evidence supporting the allegation lacks credibility, since it is inconsistent, not detailed and not independently corroborated. Accordingly, the author has not established, prima facie, substantial grounds for his case.
4.5 On 9 February 1996, the author's father applied for a Sri Lanka (Special Assistance) Visa for entry to Australia. These visas were introduced in 1995 for the purpose of assisting Sri Lankans whose lives had been seriously disrupted by the fighting. At the time of the application, the grant of the visa was conditional on one of the members of the family unit — "the applicant" — satisfying criteria that included the following: the applicant must be a Sri Lankan citizen usually residing in Sri Lanka at the time of the application; the applicant's life had to have been seriously disrupted by the fighting in Sri Lanka in the 18 months preceding the date of application; the applicant had to be unable to resume normal life; the applicant had to have suffered substantial discrimination on the grounds of ethnicity or political belief; the applicant must have a parent, daughter, son, brother, sister, aunt, uncle, nephew or niece who was an Australian citizen or permanent resident on 1 January 1994, was usually resident in Australia and who would provide an undertaking to support the applicant.
4.6 The application was made in February 1996, i.e. less than 18 months after the alleged arrest and torture of the author by police in October 1994 and after the other alleged instances of ill-treatment of the author in 1994, 1993, 1989, 1988 and 1987. However, no mention was made in the application of any ill-treatment of the son, despite the fact that the application form stated that claims by any member of the close family which supported the application should be included. It is likely that the author's father would have known of any ill-treatment of his son since the latter had been a schoolboy of approximately 15 when the first instance of torture allegedly occurred. Moreover, the son appears to have kept in regular contact with his father after leaving for Colombo. In the State party's view, the omission by the author's father of any reference to the considerable ill-treatment that is later alleged by his son undermines the author's credibility.
4.7 The State party further submits that the author lacks credibility in view of inconsistent evidence and admissions he has made since his arrival in Australia. The State party underlines that it is not concerned with minor or irrelevant inconsistencies and that it recognizes the jurisprudence of the Committee that complete accuracy in the application for asylum is seldom to be expected of victims of torture. Communication No. 41/1996, Kosoki v. Sweden, 8 May 1996, para. 9.3; Communication No. 43/1996, Tala v. Sweden, 15 November 1996, para. 10.3. In the category of minor or irrelevant inconsistencies Australia places the differing allegations regarding the year and extent of damage to the family home after shelling by the army in the 1980s; the perpetrators of the alleged arrest of the author in 1987; the means by which the author received confirmation that the police who visited his workplace in early 1997 were in fact looking for him. The evidence provided to Australia by the author and his advisers has, over time, included increasingly elaborate, and at times conflicting, statements of fact concerning his alleged treatment in Sri Lanka.
4.8 The variations between the author's original and later statements were noted by the RRT at its hearing. On arrival at Melbourne airport, the author was asked whether he had had any trouble with the police/army in his home country or whether his family had experienced any other disruption. His response was that he had been detained on one occasion, overnight. No reference was made to any ill-treatment. One month later, in the statement supporting his application for a protection visa, the author mentioned no fewer than seven instances of alleged mistreatment, detention and/or torture. Three months after arriving in Australia, in his reasons for review filed with the RRT, he mentioned an additional experience: the alleged interrogation for 20 days in December 1996. Responding to a request by the RRT for an explanation, the author stated that he had "misunderstood the question at the airport concerning difficulties with the authorities". The State party notes that there was no interpreter present at the interview with the author on his arrival at Melbourne airport. However, in relation to the potential for misunderstanding, the State party also notes the following comment by the RRT: "[The author] appears to have been able to understand and respose (sic) to a range of other questions to which he supplied detailed factual answers. The Immigration inspector recorded that [the author] "appeared to be fluent in English and as such was interviewed without the need of an interpreter". (Another Sri Lankan detained at the same time was provided with an interpreter; it does not appear that [the author] at any stage requested an interpreter or expressed any difficulty). The author's own application form later described his ability to speak, read and write English as "reasonable". The State party is of the view that the author's explanation undermines his credibility with respect not only to the incident that he later said caused him to leave Sri Lanka, but to all later allegations of ill-treatment.
4.9 There were also contradictory statements regarding his movements in Sri Lanka. In his arrival interview he said that he had lived in Jaffna until going to Colombo in January 1997 to further his studies. Later, in his compliance interview with the Department of Immigration and Multicultural Affairs, the author stated that he had lived in Jaffna until March 1993, then lived in Colombo from March 1993 to February 1995, returning to Jaffna in March 1995 because of the conditions in Colombo; he returned to Colombo about a month before his departure for Singapore and Australia. When questioned about the different stories by the RRT, the author stated that on arrival he had untruthfully concealed his employment in Colombo in 1993/94 because he had been told that this might lead to his immediate deportation. The State party, like the RRT, has formed the view that the author has diverged from the truth where it has suited his purposes.
4.10 The State party underlines the importance of the RRT findings. The tribunal has experience in reviewing applications concerning Sri Lankan nationals. In the 1996/97 programme year, 930 applications for review were received by the RRT from Sri Lankan nationals. Of the 678 applications processed, 236 were set aside and 408 were affirmed. Thirty-four applications were otherwise resolved. Thus, in relation to primary decisions, the set aside rate on review was 37 per cent.
4.11 Furthermore, the State party states that its view that the author's allegation lacks substantiation is supported by the lack of detail concerning, and independent corroboration of, the ill-treatment he allegedly experienced. During the asylum procedure the author has only described once the details of his ill-treatment. Even then, he described only one of the nine instances. There is no evidence to indicate that the author suffers from post-trauma stress which might affect his ability to provide detail of prior traumatic events.
4.12 The State party also points out that there are no documents to support the allegation that the author would face risk on return. Despite his claim to have some scars as the result of the torture he suffered at the hands of the EPRLF, the author has not provided any evidence of any permanent scarring that is consistent with the alleged mistreatment at the hands of the Sri Lankan authorities.
B. Observations on merits
4.13 The State party submits that should the Committee declare the communication admissible, it should be found to be without merit.
4.14 The State party recognizes that fighting between the LTTE and the Sri Lankan Government in recent years has taken a heavy toll on the civilian population and that despite an improvement in the human rights situation in recent years, mass movements of civilians and human rights infringements by both the security forces personnel and the LTTE continue to take place. However, in accordance with the Committee's jurisprudence, specific grounds must exist indicating that the individual concerned would be personally at risk of torture upon return.
4.15 Despite the level of ethnic conflict which exists in Sri Lanka at present, and on the basis of the State party's understanding of the author's background and the current situation in Sri Lanka, the State party has formed the view that, as a matter of fact and law, there are no circumstances particular to the author which constitute sufficient grounds for believing that he personally would be subjected to torture upon his return.
4.16 The author is a young Tamil man from Jaffna whose family has suffered as a result of the ethnic conflict, however, he has not suffered to any greater extent than any other young Tamil from the north. For the reasons presented in its admissibility submission, the State party cannot accept his allegations of ill-treatment, with the exception of the overnight detention in early 1996.
4.17 The State party has formulated its views on the likely treatment of a person in the author's situation based on the assessment of several expert groups in Sri Lanka, including the Australian High Commission in Colombo and independent organizations, and highlights, inter alia, the following. It is recognized that Tamil people in Sri Lanka are subjected to a greater degree of surveillance, suspicion and arrest than non-Tamil people. One of the impacts of the LTTE attacks since October 1997 is a tightening of security in Colombo. More Tamil people are being caught up in the security measures, such as cordon and search operations (commonly called a "round-up") or checkpoints. Their purpose is to identify possible terrorists. People who do not have identity documents that readily establish their bona fides must find other means to do so. Those who do not have documentation and do not satisfy police that they have a legitimate reason for being in the city will be detained until their bona fides are established.
4.18 In Jaffna, security is less tense but security checks are nevertheless frequent. Checks take the form of channelling all people moving on a street into a single file for frisking. At these points, passengers in all passing vehicles are also searched. During cordon and search operations, everybody present, whether Tamil, Singhalese or Muslim, is checked. Non-Tamils are likely to be sent on their way and those detained will almost invariably be Tamil.
4.19 The State party submits that the profile of a person who might come under scrutiny in any such situations is the same: young Tamils from the north or east of Sri Lanka are most likely to be detained. However, the State party understands from consistent reports since February 1997 by the Australian High Commission in Sri Lanka and confirmed by independent sources that only a small percentage of people caught in a cordon and search operation or at a checkpoint are detained and, of those detained, the overwhelming majority are released once their identification and bona fides are established.
4.20 In addition, the State party notes that Tamil people, like anyone else, continue to have the protection of the law against unlawful activities by security services. Detained persons and their families have access to the assistance of the Human Rights Commission and international humanitarian organizations. There is evidence that intervention by these organizations in cases of individuals detained for lengthy periods has led to a speedy resolution of the case. The Sri Lankan Government has also demonstrated its willingness to avoid complicity in unlawful ill-treatment of Tamils. In December 1994, it enacted the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Act (No. 22 of 1994) which makes it an offence for any person to torture, to aid or abet torture, or to conspire or attempt to torture any other person. It has also prosecuted members of the security services who have violated the law.
4.21 The State party notes the current practice of other States in relation to failed asylum-seekers from Sri Lanka. On 13 February 1998, the Australian High Commission in Colombo advised the Government that most Western missions in Colombo continue to be firmly of the view that Colombo and most urban centres in Sri Lanka are safe for the return of failed asylum-seekers. Countries which are actively repatriating Sri Lankans include Switzerland, Germany, Sweden, Norway, the United Kingdom, Italy and the Netherlands.
4.22 In view of the above, the State party does not consider that the author will be of interest to the security forces in a situation of active conflict, as he has denied active involvement in the activities of the LTTE. The State party has also confirmed that it is possible for a Sri Lankan national in the author's situation to obtain a full Sri Lankan passport and thereby re-enter Sri Lanka without drawing attention to himself.
4.23 On the other hand, the State party accepts that the author does come within the profile of individuals likely to come under scrutiny by the Sri Lankan authorities. It also recognizes that the author will have to apply for an identification document soon after his return which may take some days, during which time he may be particularly vulnerable to being questioned, and possibly detained, either in a cordon and search operation or at a checkpoint. However, such vulnerability itself does not provide substantial grounds for believing that the author would be subjected to torture. On the basis that his bona fides will be able to be verified by the Sri Lankan authorities, the State party submits that the chances of the author being tortured, or indeed detained for a prolonged time, are very remote indeed.
4.24 Finally, the State party draws the Committee's attention to the requirement that the risk to the alleged victim be a risk of torture, rather than a less severe form of ill-treatment. The State party submits that neither the fact of detention itself, nor detention and questioning, has the necessary degree of deliberateness or intentionality nor the necessary severity of pain to fall within the definition of torture in the Convention. Even if the Committee were to accept that the only instance of alleged torture that is described by the author was substantiated, it cannot be assumed that treatment of this kind would fall within the scope of the definition of torture. The author has described an alleged experience of questioning combined with assault and deprivation of food, drink and sleep which, according to the jurisprudence of the European Court of Human Rights, does not necessarily constitute torture but rather inhuman and degrading treatment.
4.25 In conclusion, there is no evidence that the author has personal characteristics that make him more likely to come to the attention of the Sri Lankan authorities than any other young Tamil from the north. For these reasons, the State party submits that there are no substantial grounds to believe that the author would face torture on his removal to Sri Lanka. Moreover, any treatment the author is likely to receive at the hands of the Sri Lankan authorities would not have the necessary deliberateness or severity to constitute torture as defined in article 1, paragraph 1, of the Convention.
5.1 In accordance with rule 110, paragraph 4, of the rules of procedure of the Committee, the observations received from the State party were communicated to the author's representative, with the request that any comments he might wish to submit thereon should reach the Committee within six weeks of the date of the transmittal. No such comments were received despite a reminder sent several months after the given deadline.
6.1 Before 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 notes that the author has not provided comments to the State party's observations and considers that, in accordance with rule 108, paragraph 8, of its rules of procedure, non-receipt of such comments within the established time-limit should not delay the consideration of the admissibility of the communication. It therefore proceeds to the examination of the admissibility issue.
6.2 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 and notes that the exhaustion of domestic remedies is not contested by the State party. It further notes the State party's view that the communication is inadmissible because it lacks the minimum substantiation that would render it compatible with the Convention and that there is a particular onus on the author to substantiate and convincingly plead a prima facie case in refoulement cases. The Committee nevertheless considers that the author has provided enough substantial elements prima facie and that his communication is compatible with the provisions of the Convention. It therefore considers that the communication is admissible.
6.3 Since the State party has also provided observations on the merits and the author, in accordance with rule 110, paragraph 4, of the rules of procedure, has been given the opportunity to make comments on such observations, the Committee will proceed to examine the communication on its merits.
6.4 The Committee must decide whether the forced return of the author to Sri Lanka would violate the State party's obligation under article 3, paragraph 1, of the Convention not to expel or return (refouler) an individual to another State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture. In order to reach its conclusion the Committee must take into account all relevant considerations, including the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The aim, however, is to determine whether the individual concerned would personally risk 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 sufficient grounds for determining whether the particular person would be in danger of being subjected to torture upon his return to that country; additional grounds must be adduced 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.
6.5 The Committee is aware of the serious situation of human rights in Sri Lanka and notes with concern the reports of torture in the country, in particular during pre-trial detention. It is also aware of the fact that Tamils are at particular risk of being detained following controls at checkpoints or search operations.
6.6 Although the Committee considers that complete accuracy is seldom to be expected from victims of torture, it notes the important inconsistencies in the author's statements before the Australian authorities. It further notes that the author has not provided the Committee with any arguments, including medical evidence, which could have explained such inconsistencies. Accordingly, the Committee is not persuaded that the author faces a personal and substantial risk of being tortured upon his return to Sri Lanka.
7. In the circumstances the Committee, 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 decision of the State party to return the author to Sri Lanka would not constitute a breach of article 3 of the Convention.
Facts described by the author
Comments by the author
Submitted by: H.D. (name withheld) [represented by counsel]
State party: Switzerland
Date of communication: 4 June 1998
Meeting on 30 April 1999,
Having concluded its consideration of communication No. 112/1998, submitted to the Committee against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
1. The author of the communication is H.D., a Turkish citizen of Kurdish origin, who was born in 1960. He has been refused refugee status in Switzerland and is threatened with being returned to Turkey with his wife and two children. He states that his return to Turkey would be in contradiction with Switzerland's obligations under article 3 of the Convention. He is represented by counsel.
2.1 The author is from the Pazarcik region of Turkey. He states that he was a supporter of the illegal PKK (Partya Karkener Kurdistan, Kurdistan Worker's Party) party as a student, but did not participate in specific activities apart from providing food and clothing to friends who were involved with the PKK. He says that one of his cousins, an active PKK member who had been imprisoned from September 1990 to April 1991, came to stay with him and his family after his release. On 14 and 15 May 1991, members of the security forces came to search for his cousin in his home. Not finding him, they arrested the author on 15 May and took him first to Pazarcik police station, where he was beaten, and later to Maras, where he was questioned about his cousin's whereabouts and activities. He states that he was detained until 28 May 1991 and that he was tortured, in particular with electric shocks. He was released with the explanation that his cousin had been found.
2.2 On returning to Pazarcik, he learned that his cousin had been killed by the security forces. In the hospital he saw the body, which had been disfigured and mutilated. In the cemetery he tried to take a photo of the body, but an unknown person who, he believes, was connected with the security forces prevented him from doing so by throwing his camera on to the ground. On 5 June 1991, he was again arrested for a day. He was told that the security forces were aware of his support for the PKK, and was threatened with death if he refused to cooperate with the information service and denounce members of the PKK. Feeling that his life was in danger, he decided to leave the country and travelled to Istanbul on 14 July 1991.
2.3 On the day of his departure for Istanbul, persons in civilian clothes came to his home and asked his wife where he was. She told them that he was at work and was thereupon insulted and accused of supporting terrorists. She was then taken to the police station, where she was held for several hours and slapped. On 13 August 1991 she joined her husband in Istanbul.
2.4 The author arrived in Switzerland with his family on 20 August 1991 and immediately applied for asylum. The Federal Office for Refugees rejected his application on 21 April 1992. On 17 January 1996, the Appeal Commission on Asylum Matters rejected the appeal. The author submitted a request for review of the decision by the Commission, which was also rejected on 12 August 1996. Two requests for reconsideration were submitted to the Federal Office for Refugees, which rejected them on 5 September 1996 and 1 May 1998. Finally, on 19 May 1998, the Commission on Asylum Matters rejected the appeal against those decisions.
2.5 Counsel states that the author's flight would be largely inexplicable had it not been for the torture he had suffered and the pressure brought to bear on him to collaborate with the secret services. It should be borne in mind that his wife had been seven months pregnant when she left and the author had been financially well off in Turkey. A psychiatrist had found that the author was suffering from post-traumatic stress disorder caused mainly by his experiences prior to his arrival in Switzerland. Furthermore, the author and his family had lived illegally in Switzerland for more than two years, which had seriously undermined his psychological health. Had it not been for the certainty of being tortured in Turkey if he went back, his illegal stay in Switzerland remained unaccountable.
Merits of the complaint
3. In view of the reasons which prompted his departure from Turkey and the existence of a consistent pattern of flagrant persecution of Kurdish separatists by the Turkish authorities, the author states that his return to Turkey would constitute a violation of article 3 of the Convention, since there are substantial grounds for believing that he would be at risk of being subjected to torture upon his return.
4.1 In a letter of 19 August 1998, the State party informed the Committee that it had been unable to accede to the Committee's invitation of 23 June 1998, pursuant to article 108, paragraph 9, of its rules of procedure, not to expel or return the author to Turkey since he and his family had been missing since 15 September 1996. On 27 November 1998, the State party informed the Committee that the author and his family had reappeared and that the Federal Office for Refugees had requested the immigration authorities of the Canton of Berne not to enforce the return while the present communication was pending before the Committee. The State party also indicated that it did not contest the admissibility of the communication.
4.2 As to substance, the State party notes that the author has, in his communication to the Committee, recapitulated the arguments he adduced in support of his application for asylum. In the latter he had stated that he had given financial support to active members of the PKK. In addition, he had provided them with food and clothing. He stated that he had been arrested for the first time in 1977 and that, in 1982, he had been put under pressure to cooperate with the Turkish information service. He claims that his return to Turkey would expose him to the risk of rearrest and torture (known as "deliberate persecution").
4.3 According to the State party, the statements made by the author at his hearings before the Federal Office for Refugees on 30 August and 2 December 1991 contained factual inconsistencies and contradictions. The private medical examination of 31 January 1998, six and a half years after the deposit of his application for asylum, did not prove that the post-traumatic disorders had originated at a time prior to his departure from his country. Even if the author had been subjected to torture, the Swiss authorities considered that he would not be in danger of being subjected to "deliberate persecution" on his return to Turkey in view of, inter alia, the information obtained by the Swiss embassy in Ankara that the author was not wanted by the police and was not forbidden to hold a passport.
4.4 The competent Swiss authorities mentioned the lack of credibility of the author's statement that he had been tortured during his detention from 15 to 28 May 1991. In support of his communication, the author states, as he had previously done before the Swiss authorities, that on 15 May 1991 the security forces had come to his home looking for his cousin N.D. When they did not find his cousin, they allegedly took him to Pazarcik police station and then to Kahramanmaras, where they tortured him. During his hearing before the immigration authorities on 2 December 1991, the author stated that he had been beaten with rubber truncheons while blindfolded and with his hands bound. He had also allegedly been subjected to electric shocks. When questioned on this point, he had claimed that the electric wire had been attached to his toes and that his whole body had shaken. He had been able to describe in detail the appliance from which the electric shocks originated: "There was a sort of grip which they attached to my toes. There was also an appliance like a battery which they plugged in". The Federal Office and Commission had noted certain inconsistencies in the author's account. He had allegedly been blindfolded while being taken to the place where he had been tortured, but he had nevertheless been able to describe in detail the appliance which produced the electric shocks and the way in which it had been used, even though, in his own words, he had been blindfolded during the torture. In his communication, being aware of this contradiction, he claims that he had imagined the physical causes of the pain and had given a very general description of them. In that connection, he maintains that the Swiss authorities have completely ignored the normal functioning of memory. Irrespective of the validity of that objection, it should be recalled that the Swiss authorities had taken account of a large number of other inconsistencies in casting doubt on the author's credibility.
4.5 On 28 May 1991, after the security forces had found his cousin, the author had allegedly been released right away. The Commission on Refugee Matters had concluded therefrom, in its decision of 17 January 1996, that the Turkish authorities had not been interested in pursuing the author since only N.D. had been of interest to them. In its decision of 21 April 1992, the Federal Office had considered that the author would not have been released if the Turkish security forces had really suspected him of having supported the PKK. In any event, judicial proceedings would have been initiated against him and he would have been detained for longer than 14 days. In no circumstances would he have been released on the very day when N.D. was found.
4.6 Another point was that the author and his wife had, according to their statements, legally obtained identity cards on 9 July 1991, that is, after the arrest. That would have been unlikely in the case of a person who was genuinely sought by the Turkish information service since he would have been in danger of again being arrested at that time. In reply to that argument by the Federal Office, the author had stated in his appeal to the Commission of 10 September 1993 that he had not obtained the identity cards himself, but had obtained them through a certain Mehmet Jeniay, who was allegedly on good terms with the Pazarcik authorities. The Commission considered that that new explanation was irrelevant in view of the author's statements at his previous hearings.
4.7 In his application for review of 25 April 1996, the author had transmitted documents (an indictment for accepting or soliciting bribes and forgery, a judgement concerning Mahmut Yeniay) intended to demonstrate that Mahmut Yeniay (or Mehmet Jeniay), an official in the identity card office in Pazarcik and known for his corruptibility and irregularities when issuing such cards, had indeed issued the identity card in question. In its decision of 12 August 1996, the Commission had noted the following inconsistencies in that connection:
(a) The criminal proceedings against Mahmut Yeniay had been still pending at the time when the identity cards were issued. It is difficult to imagine that he might still have been able to issue such documents in complete freedom, especially since he had been imprisoned for one month shortly before;
(b) On the identity card submitted to the Federal Office, the name of the issuing official is not that of Mahmut Yeniay;
(c) In the present communication the author reaffirms what he stated at his first hearing, namely that he had obtained his identity card legally, whereas in his appeals within Switzerland he has endeavoured to demonstrate the opposite.
4.8 Other contradictions by the applicant are also apparent:
(a) The author stated in his communication, as he had done to the Swiss authorities, that his cousin had stayed with him after having been released and that he had given food and clothing to PKK members. His wife, on the other hand, stated that, during that same period, her husband had been building a school in a village near Cerit and that often he would not come home for three or four days, or even a week. She stated that she had prepared meals for N.D. and one of her cousins, who was also a member of the PKK. On the basis of those statements, it was probable that N.D. had not stayed in the author's home. There might, however, have been occasional meetings between them;
(b) Reference should also be made to certain contradictions in the author's statements concerning the duration of his detention in Pazarcik following his arrest on 15 May 1991. He had mentioned two days in his statements to the registration centre and four days to the immigration authorities;
(c) The author also contradicted himself in his statements concerning the date of the last arrest, giving 5 June 1991 to the registration centre and in the communication and 6 June 1991 to the immigration authorities. Furthermore, his wife has never spoken of that arrest;
(d) The author's statements are unconvincing and inconsistent concerning the circumstances of the burial of N.D. In particular, he stated at his first hearing that he had been prevented by an unknown person from photographing the body of N.D., whereas at the second hearing the person preventing him had been a member of the special unit or the information service;
(e) It is unlikely that the author, who had allegedly been threatened with death if he did not cooperate with the information service at the time of his last arrest on 6 June 1991, would have been released after only one day;
(f) It is also unlikely that the author would have waited a further two months before fleeing his country or that he could have been issued, in complete legality, with an identity card before his departure;
(g) In his communication the author maintains that, if he had not really been tortured, he would not have run away with his wife because she had been seven months pregnant at the time of departure. In that connection, the question arises why the author had waited a further two months after his last arrest before fleeing. As time passed, it was becoming more and more difficult to leave the country.
4.9 In the light of the foregoing considerations, the allegations of arrests and persecution suffered by the author appear very doubtful and are not based on any substantial indication worthy of consideration under article 3 of the Convention.
4.10 In his communication the author claims that the post-traumatic disorders from which he is suffering are primarily the result of what he suffered in Turkey. The doctor who examined the author on two occasions, on 16 and 29 January 1998, in the presence of an interpreter, arrived at the following diagnosis: the author is suffering from a post-traumatic disorder; he has other typical symptoms: traumatizing memories, sleep disturbance, fear and panic; he is in need of treatment. The possible causes of his psychological state are described by the expert as follows: "It should be further mentioned that the long period during which the author has hidden in Switzerland has also had a great effect on his condition and has left marks. His reactions during my examination of him demonstrate that the most significant elements derive from the preceding period."
4.11 The Federal Office and the Commission considered that there was nothing to show that the author's disorders resulted from the torture he had allegedly suffered in Turkey in 1991. The Commission noted that the doctor's statement that the causes of the disorders had existed mainly prior to the author's disappearance did not mean that the causes did not date back to a period following the author's departure from his country. As the doctor had noted, living illegally for two years was undoubtedly very stressful for the father of a family and could be a plausible cause for his poor psychological condition. In any event, it is undoubtedly surprising that the author did not report his post-traumatic disorders until 1998, that is, six and a half years after his arrival in Switzerland, precisely at the time when he was due to be sent back. The State party believes it has thus demonstrated that the medical test should not be regarded as evidence within the meaning of paragraph 8 (c) of the Committee's general comment on the implementation of article 3 of the Convention.
4.12 The author maintains that on his return he would be liable to rearrest and torture since he has allegedly supported relatives sought by the security forces. However, the relatives active within the PKK whom he claims to have supported, namely his cousin N.D. and his wife's cousin, were killed in 1991 and 1992 respectively. It is therefore not clear why the Turkish authorities should still today be interested in persecuting the author. In that connection, it should be recalled that, at the time of his arrest in May 1991, the author was immediately released after the special unit found the body of N.D. On the occasion of his last arrest in June 1991, he was not tortured and was released the same day. From this it may be concluded that the information service, already at that time, no longer had any special interest in pursuing the author. Lastly, it cannot be claimed that the Turkish authorities consider that, after living abroad for more than seven years, the author is still in close contact with relatives active in the PKK in Turkey.
4.13 In its decision of 12 August 1996, the Commission, in accordance with its previous decisions in cases of deliberate persecution, found that threat of persecution was generally limited to a small geographical area and that the individual concerned could avoid the threat of persecution by settling in another region of the country. In addition, the Swiss mission in Ankara had made inquiries about the author's situation in Turkey and, in November 1992, confirmed that the police had no political file on the author and that he had no criminal record. Nor had his right to hold a passport been revoked. On the contrary he and his wife had obtained passports in 1991 at Kahramanmaras, contrary to what he had said. All these considerations make "deliberate persecution" very implausible.
4.14 Admittedly, to determine whether there are substantial grounds for believing that a person would be in danger of being subjected to torture, the competent authorities must take into account "all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights" (Convention, art. 3 (2)). The Swiss Government does not dispute the fact that the situation in certain regions of south-eastern Turkey is difficult owing to fighting between Turkish security forces and PKK movements. Violent conflicts, however, are concentrated in clearly defined regions. In previous decisions the Commission on Asylum Matters has consistently found that deliberate persecution is generally limited to a small geographical area, basically a village or region where the local police act on their own authority. Thus there is generally the possibility of fleeing, in this case to towns or cities in western Turkey, especially as freedom of establishment is guaranteed in Turkey and there are social networks in western Turkey for receiving large numbers of Kurds.
4.15 Thus Kurds do not appear to be at risk in all regions of Turkey today. In the case at hand, therefore, the inquiry should focus on whether the author would be personally at risk if he were to return to Turkey and whether he has a fair and reasonable possibility of settling in certain regions of Turkey. In its decision of 17 January 1996, the Commission found that returning the author to Kahramanmaras, his province of origin, would not be admissible, but that the author, who speaks Turkish well and has a good education, his wife and two children could, on the other hand, be perfectly well expected to begin to lead a decent and worthy life in a region of the country where they would not be at risk. Considering the author's professional experience in different fields and his educational background, it may be assumed that he will have comparatively fewer problems in finding the means to support himself and his family than many other members of the Kurdish people.
4.16 In view of the foregoing, the Swiss Government invites the Committee against Torture to find that the return to Turkey of the author of this communication would not constitute a violation of Switzerland's international commitments under the Convention.
5.1 In his comments on the State party's observations, counsel says the fact that the competent authorities have handed down six decisions is no indication that they have delved very deeply into the case. The authorities have at no time noted that the author was suffering from post-traumatic stress disorders resulting from the events he had experienced in Turkey, nor have they ever thought of consulting a psychiatrist to compensate for their own lack of knowledge in this area.
5.2 The State party denies the conclusions of the medical report, without giving any reasons. The report, however, clearly notes that most of the author's post-traumatic problems stem from a time before he left his country.
5.3 No conclusions concerning torture or political persecution can be drawn from the fact that the Government of Turkey has not confirmed the existence of a political file on the author or that he has a criminal record.
5.4 From 15 to 28 May 1991, the author was in a situation where he was the victim of deliberate persecution, according to the principles established by the Swiss asylum authorities. It is completely contradictory for the Swiss authorities to cast doubt on the author's credibility when he claims to have been arrested and tortured because the Turkish authorities were looking for N.D.
5.5 Counsel holds that it was perfectly reasonable for Mahmut Yeniay to forge a name and issue an identity card for which he had received a bribe. As Yeniay had been released and might even have anticipated the acquittal of 16 July 1991, it was not too dangerous for him to continue to take bribes.
5.6 The author's so-called contradictions are far from sufficient to cast doubt on his credibility. Firstly, they relate not to the torture suffered but to unimportant details. Secondly, the State party gives no consideration to aspects of psychological theory generally used to judge a person's credibility.
5.7 The so-called contradiction mentioned in paragraph 4.8 (c) above concerns not the author but his wife, and the State party's argument is mere speculation. There is nothing to indicate that the State party is correct in assuming that N.D. had probably not stayed in the author's home.
5.8 The so-called contradictions concerning the length of the author's detention in May 1991 and the date of his last detention (paras. 4.8 (b) and (c)) in fact confirm the author's credibility since a person with the author's education would be capable of devising a consistent story even if he had not been arrested.
5.9 The fourth so-called contradiction (para. 4.8 (d)) is not a contradiction at all, as the author did not know the identity of the person he suspected of being a member of the information services. Even the Federal Office concluded that the author's statements on this point were credible (Commission on Asylum Affairs decision of 17 January 1996).
5.10 The fifth so-called contradiction, concerning the death threats (para. 4.8 (e)), is also not a contradiction. Death threats are used to intimidate people and as a measure of political persecution. They must be taken seriously in a country where the security services cause dozens of persons to disappear every year, primarily in connection with Kurdish separatism.
5.11 Finally, with regard to the sixth and seventh so-called contradictions (paras. 4.8 (f) and (g)), counsel points out that the author did not wait two months before leaving his country, but in fact used that time to prepare for his departure. A decision to leave one's country is not one to be taken lightly, quite the contrary.
5.12 Counsel submits that the Swiss authorities have not at any time examined the author's statements in the light of psychological criteria, in particular regarding the effects of torture on the author. The author informed the Federal Office on 30 August 1991 that he had been tortured. At no point since then have the Swiss authorities attempted to verify that information by consulting a psychiatrist. They alone are responsible for this omission. The fact that the author preferred to live illegally for two years rather than return to Turkey is proof of his fear of being persecuted and tortured again. His fear is based on the following: (a) the existence of a pattern of gross, flagrant and mass violations of human rights in Turkey today; (b) his credible statements, corroborated by a medical test, that he has been tortured and that the effects of the torture still exist; (c) there are no obvious violations pursuant to paragraph 2 of article 3, 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 return to that country. Other grounds must exist that indicate 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.
6.1 Before 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 the State party has not contested the admissibility of the communication. It therefore considers that there is no reason why the communication should not be declared admissible. 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.
6.2 The issue before the Committee is whether the forced return of the author to Turkey would violate the obligation of the State party 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 would be in danger of being subjected to torture.
6.3 The Committee must decide, pursuant to paragraph 1 of article 3, 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 paragraph 2 of article 3, 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 return to that country. Other grounds must exist that indicate 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.
6.4 In the present instance, the Committee notes that the State party draws attention to inconsistencies and contradictions in the author's account, casting doubt on the truthfulness of his allegations. The Committee considers, however, that even in the presence of lingering doubts as to the truthfulness of the facts presented by the author of a communication, it must satisfy itself that the applicant's security will not be jeopardized. It is not necessary, for the Committee to be so satisfied, that all the facts related by the author should be proved: it is enough if the Committee considers them sufficiently well attested and credible.
6.5 From the information submitted by the author, the Committee observes that the events that prompted his departure from Turkey date back to 1991, and seem to be particularly linked to his relations with members of his family who belong to the PKK. The apparent object of arresting the author in 1991 was, on the first occasion, to force him to disclose his cousin's whereabouts, and on the second occasion, to force him to collaborate with the security forces. On the other hand, the question of a prosecution against him on specific charges has never arisen. Furthermore, there is nothing to suggest that he has collaborated with PKK members in any way since leaving Turkey in 1991, or that he or members of his family have been sought or intimidated by the Turkish authorities. In the circumstances, the Committee considers that the author has not furnished sufficient evidence to support his fears of being arrested and tortured upon his return.
6.6 The Committee notes with concern the numerous reports of human rights violations, including the use of torture, in Turkey, but 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 is returned. In the light of the foregoing, the Committee deems that such a risk has not been established.
6.7 The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the State party's decision to return the author to Turkey does not constitute a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the French text being the original version.]
Observations on admissibility
Observations on merits
1. Communication No. 62/1996
Decision on admissibility
State party's observations on the admissibility of the communication
State party's observations on admissibility
Facts as submitted by the authors
List of documents for general distribution issued for the Committee during the reporting period
A. Twenty-first session
CAT/C/46 : Provisional agenda and annotations
B. Twenty-second session
CAT/C/17/Add.19 : Second periodic report of Bulgaria
CAT/C/28/Add.4 : Initial report of the former Yugoslav Republic of Macedonia
CAT/C/29/Add.5 : Second periodic report of Liechtenstein
CAT/C/34/Add.11 : Third periodic report of Egypt
CAT/C/43/Add.1 : Second periodic report of Mauritius
CAT/C/43/Add.2 : Second periodic report of Morocco
CAT/C/44/Add.2 : Third periodic report of Italy
CAT/C/44/Add.3 : Third periodic report of the Libyan Arab Jamahiriya
CAT/C/47 : Note by the Secretary-General listing initial reports due in 1999
CAT/C/48 : Note by the Secretary-General listing second periodic reports due in 1999
CAT/C/49 : Note by the Secretary-General listing third periodic reports due in 1999
CAT/C/50 : Provisional agenda and annotations
CAT/C/SR.363-390 : Summary records of the twenty-second session of the Committee
