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.
||P.M.P.K. v. Sweden, Comm. 30/1995,
U.N. Doc. A/51/44, at 60 (1995)
||Report of the Comm. against Torture, U.N. GAOR, 51th
Sess., Supp. No. 44, U.N. Doc. A/51/44, Annex V, at 60 (May 10,
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 20 November 1995,
Adopts the following:
Decision on Admissibility
1. The author of the communication is a Zairian citizen who entered Sweden
in November 1991 to request asylum. She claims that her return to Zaire
following the dismissal of her application for refugee status would violate
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment. She is represented by counsel.
2. On 31 January 1994, the Swedish Board of Immigration refused the author's
application for asylum, noting that the political situation in Zaire had
improved and considering that it was not likely that the author would be
subjected to persecution or severe harassment. On 13 February 1995, the
Aliens Appeal Board confirmed the decision of the Swedish Board of
Immigration. The author then submitted a "new application" to the Appeal
Board, arguing that the situation in Zaire had not improved, but on 16 March
1995 the Board rejected her application, considering that the circumstances
invoked by the author could not be seen as new evidence.
3. On 22 August 1995, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments and requested
the State party not to expel the author while her communication was under
consideration by the Committee.
4. By submission of 16 October 1995, the State party challenges the
admissibility of the communication. It explains that under chapter 2,
section 5, of the Aliens Act, an alien who is to be refused entry or
expelled can apply for a residence permit if the application is based on
circumstances that have not previously been examined in the case and if the
enforcement of the decision on refusal of entry or expulsion will be in
conflict with humanitarian requirements. The State party emphasizes that new
circumstances cannot ex officio be assessed by the immigration authorities,
but only following a so-called "new application". The State party notes that
the medical evidence invoked by the author in support of her communication
has not previously been submitted to the Swedish immigration authorities, so
that neither the Swedish Immigration Board nor the Aliens Appeal Board has
had the opportunity to assess it. Considering that a "new application" may
be lodged at any time and that the relevant requirements have recently been
relaxed, the State party submits that domestic remedies have not been
exhausted in the present case.
5. By submission of 10 November 1995, counsel claims that a "new
application" under chapter 2, section 5, of the Aliens Act would not be
successful. In this connection, she points out that an application has to be
based on new circumstances not previously considered and that only 5 per
cent of "new applications" succeed. Since the author's request for asylum
was refused on the basis that the situation in Zaire had improved, she
argues that a "new application" on the basis of the new medical evidence
would be rejected on the same grounds.
6. Before considering any claim in a communication, the Committee against
Torture must decide whether or not it is admissible under article 22 of the
7. Article 22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication, unless it has ascertained that all
available domestic remedies have been exhausted; this rule does not apply if
it is established that the application of domestic remedies has been or
would be unreasonably prolonged or would be unlikely to bring effective
relief. In the circumstances of the instant case, the Committee considers
that the Swedish domestic authorities should have an opportunity to evaluate
the new evidence submitted by the author, before the Committee examines the
communication. Moreover, on the basis of the information available, the
Committee cannot conclude that the available remedy of a "new application"
would be a priori ineffective.
8. The Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the State party, to the
author and to her counsel.
[Done in English, French, Russian and Spanish, the English text being the