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BEFORE: |
CHAIRMAN:
Mr. Alexis Dipanda Mouelle (Cameroon)
VICE-CHAIRMEN: Mr. Peter Thomas Burns (Canada), Mr. Fawzi El Ibrashi
(Egypt), Mr. Hugo Lorenzo (Uruguay)
RAPPORTEUR: Mr. Bent Sorensen (Denmark)
MEMBERS: Mr. Ricardo Gil Lavedra (Argentina), Mrs. Julia Iliopoulos-Strangas
(Greece), Mr. Mukunda Regmi (Nepal), Mr. Habib Slim (Tunisia), Mr.
Alexander M. Yakovlev (Russia)
All the members attended the fifteenth session of the Committee
except Mr. Hugo Lorenzo. Mr. Alexander M. Yakovlev attended the
second week of the session only.
With regard to the absence of Mr. Lorenzo, at both the fourteenth
and fifteenth sessions, the Committee took note of the reply of the
Secretary-General of the United Nations, dated 23 May 1995, to a
letter addressed to him by the Committee, through its Chairman, on
24 April 1995,[FN1] by which the Secretary-General confirmed that Mr.
Lorenzo was not authorized to serve as member of the Committee as
long as he remained a staff member of the United Nations.
FN1. See Official Records of the General Assembly, Fiftieth Session,
Supplement No. 44 (A/50/44), paras. 7 and 8. |
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Applicant: |
X. |
Represented By: |
Refugee Aid Commission [Comisión Española de Ayuda al
Refugiado (CEAR)] |
Respondent: |
Spain |
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Perma
Link: |
http://www.worldcourts.com/cat/eng/decisions/1995.11.15_X_v_Spain.htm |
Citation: |
X v. Spain, Comm. 23/1995, U.N. Doc.
A/51/44, at 55 (CAT 1995) |
Publication: |
Report of the Comm. against Torture, U.N. GAOR, 51th
Sess., Supp. No. 44, U.N. Doc. A/51/44, Annex V, at 55 (May 10,
1996) |
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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 15 November 1995,
Adopts the following:
Decision on Admissibility
1. The author of the communication is the Spanish Refugee Aid Commission [Comisión
Española de Ayuda al Refugiado (CEAR)] on behalf of X, an Algerian citizen
born on 20 February 1958. It is alleged that he suffered a violation of
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment by Spain in being deported to Algeria on
24 November 1994.
The Facts as Submitted by the Author
2.1 On 15 November 1993, X entered Spanish territory through the town of
Melilla, travelling on a false French passport. He was detained by the
police and stated that he wished to travel to Germany. On 16 December 1993
he was brought before a court on a charge of falsification of documents and
was provisionally released.
2.2 On 11 January 1994, X applied for asylum, stating that he was a member
of the outlawed Front Islamique du Salut (FIS) in Sidi Bel-Abbes, that
security forces had come to his house to look for him, and that he feared
being sentenced to death if detained.
2.3 On 3 October 1994, X's request for recognition as a refugee was rejected
by the Minister of Justice and he was ordered to leave the country within 15
days. On 13 October 1994, X applied to the Audiencia Nacional for a review
of the decision and suspension of the expulsion order. On 9 November 1994, X
addressed a letter to the Minister of Justice asking, if his presence in
Spain was to be found undesirable, to be sent to a third country.
2.4 On the night of 22 to 23 November 1994, X was arrested by the police at
his residence and at 11 a.m. on 23 November 1994 he was put on board an
aircraft bound for Malaga and Madrid, whence he would be expelled to
Algeria. CEAR states that, despite numerous attempts, it has been unable to
obtain information on X's whereabouts since 23 November 1994.
2.5 CEAR states that the question has not been submitted to any other
procedure of international investigation or settlement, and that X has
exhausted all available remedies.
The Complaint
3. CEAR claims that the Spanish authorities have violated article 3 of the
Convention by sending X back to Algeria even though he was an FIS member. It
is said that the Spanish authorities did not take into account the existence
in Algeria of a consistent pattern of gross, flagrant or mass violations of
human rights. Reference is made to news reports of continuing human rights
violations in Algeria.
Submissions from the State Party
4.1 In its submissions dated 30 June, 6 October and 13 October 1995, the
State party rejects the allegations by CEAR as incorrect and inaccurate. It
is claimed that X illegally entered Spanish territory on 14 November 1993,
crossing the wire near the Beni-Enzar frontier. He had previously left
Algeria and crossed Morocco. On 15 November he was arrested as he sought to
take a ship from Melilla to the Iberian peninsula using a false French
passport. He did not at that time state that his intention was to seek
political asylum but that he wished to work in Germany. That statement, made
in the presence of a lawyer and with the help of an interpreter, was made
after he had been informed of his rights, at which time he announced his
wish to report his detention to the Algerian consulate.
4.2 The communication omits to mention that there was an expulsion hearing
in the presence of a lawyer and with the assistance of an interpreter. X was
explicitly informed that he had 10 days during which to submit his claims.
The State party emphasizes that X made absolutely no claims during the
expulsion hearings - inexplicable behaviour in an individual fearing
persecution or torture in his own country.
4.3 On 15 December, a month after his detention, X was ordered to be
expelled but the order was not put into effect because legal proceedings
were still pending. On 16 December the criminal court passed judgement and X
was released. X made no application for asylum in Spain until 11 January
1994, eight weeks after entering Spanish territory, when the expulsion was
about to be enforced. Then, for the first time, he claimed to belong to FIS.
He presented a certificate bearing neither date nor place of issue; it was
examined by the State party's experts, who expressed doubts as to its
authenticity. X claimed, but produced no evidence, that the Algerian
government authorities had "decided to arrest him" and, somewhat
contradictorily, that he had been "convicted of a political crime", without
explaining what crime or when or by what court he had been convicted.
4.4 Following the submission of the application for asylum, X was allowed 15
days to submit his claims and submit such documents and substantiating
evidence as he saw fit. He did not do so. His application was communicated
to the representative of the United Nations High Commissioner for Refugees
in Spain, who made no report, oral or written, on the proceedings.
4.5 Almost eight months later, on 31 August 1994, the application for asylum
was denied in view of the lack of documentation supporting X's case. On 3
October 1994, X was notified that he must leave Spanish territory within 15
days. When he failed to comply with the departure order, permission to expel
him was sought from Criminal Court No. 2 in Melilla, which granted
permission on 27 October 1994; the expulsion was carried out on 24 November
1994 in accordance with an order from the General Directorate of State
Security endorsed by the competent court, and X was put on a plane to
Algeria.
5.1 Regarding the admissibility of the communication, the State party
maintains that throughout his time in Spain X adduced no "substantial
grounds for believing that he would be in danger of being subjected to
torture" if he was expelled.
5.2 The State party also challenges the authority of CEAR to represent X
before the Committee, inasmuch as the certificate presented only covers
representation of X in administrative matters in Spain and does not give
CEAR blanket authority to submit a communication under article 22 of the
Convention.
Observations by Counsel for the Author
6.1 In his observations dated 11 September and 9 November 1995, counsel for
CEAR confirms his authority to act on behalf of X, who is said to have
contacted CEAR on 16 December 1993 and been advised by lawyers Arias Herrera
and Pellicer Rodríguez. Counsel for CEAR confirms his authorization to
represent X and sends a copy of a certificate dated 14 November 1994.
6.2 On the facts, CEAR repeats that X fears persecution in his home country
because he is a member of FIS.
Issues and Proceedings Before the Committee
7.1 Before considering any of the allegations in a communication, the
Committee against Torture must decide whether or not the communication is
admissible under article 22 of the Convention.
7.2 Although the accompanying mandate does not specifically mention
application to the Committee, in this case the explanations provided by CEAR
for its representation of X are accepted.
7.3 The Committee has examined the representations made by CEAR to the
Spanish authorities regarding the asylum proceedings and to the Committee
under article 22 of the Convention. It points out that its authority does
not extend to a determination of whether or not the claimant is entitled to
asylum under the national laws of a country, or can invoke the protection of
the Geneva Convention relating to the Status of Refugees. Under article 3 of
the Convention, the Committee must decide whether expulsion or extradition
might expose an individual to the risk of being tortured.
7.4 The Committee notes that throughout a year of proceedings in Spain, X's
representatives based their arguments solely on asylum and did not invoke
the right protected by article 3 of the Convention. Nor did they present the
Committee with serious grounds for believing that X risked being tortured if
he was expelled to Algeria. It is not alleged that X was detained or
tortured in Algeria before leaving for Morocco and Spain; it is not
indicated precisely what he did in FIS to justify his fear of being
tortured. [FNa] On the contrary, X said in his first statement to the
Melilla authorities, with a lawyer and interpreter present, that his
intention was to seek work in Germany, and the truthfulness of that
statement was not questioned during the asylum proceedings in Spain.
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[FNa] In the Committee's rulings on communications No. 13/1993 (Mutombo v.
Switzerland) and No. 15/1994 (Khan v. Canada), both authors alleged and
submitted medical evidence and other documents to demonstrate that they had
been detained and tortured before fleeing their respective countries.
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7.5 The Committee concludes that the communication on behalf of X has not
been sufficiently justified as regards the claimed violation of article 3 of
the Convention [FNb] but is rather a matter of political asylum, making the
communication incompatible with article 22 of the Convention.
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[FNb] Compare decisions in cases No. 17/1994 (X v. Switzerland) and No.
18/1994 (X v. Switzerland), which were declared inadmissible on 17 November
1994.
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8. The Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the author and the State
party.
[Done in English, French, Russian and Spanish, the Spanish text being the
original version.]
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