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, 1/ 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.
1/ See Official Records of the General Assembly, Fiftieth Session,
Supplement No. 44 (A/50/44), paras. 7 and 8.
||X. and Y.
||X. v. Netherlands, Comm. 31/1995, U.N.
Doc. A/51/44, at 62 (CAT 1995)
||Report of the Comm. against Torture, U.N. GAOR, 51th
Sess., Supp. No. 44, U.N. Doc. A/51/44, Annex V, at 62 (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 authors of the communication are Mr. X and Mrs. Y, Georgian citizens,
currently residing in the Netherlands. They claim to be victims of a
violation of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment by the Netherlands. They are
represented by counsel.
Facts as Submitted
2.1 The authors married in 1991 and a child was born in 1992. In January
1993, X began a homosexual relationship and became a member of an
organization to promote rights for homosexuals and bisexuals. Y states that
she was not aware of her husband's activities.
2.2 In July 1994, after X had spoken in a meeting of this organization, his
house was ransacked by four armed militia men, wearing military uniforms.
They mishandled X and threatened his wife and son. The authors reported the
incident to the police, but state that the police refused to write in the
report the real reason for the attack. The police opened an inquiry, but in
the end the case was filed for lack of evidence.
2.3 The authors state that in September 1994, their child was kidnapped from
his day nursery, allegedly by four men in military uniforms. In the evening
X and Y received a telephone call, informing them that their son would be
killed unless they left the country. Subsequently, the authors arranged for
airplane tickets to Germany, their son was returned to them and they left
the country. Two days after their arrival in Germany, the authors and their
son entered the Netherlands and requested recognition as refugees.
2.4 On 3 November 1994, their request was rejected by the Secretary of
Justice and they were ordered to leave the country. On 2 February 1995, the
authors' appeal against the refusal to grant them a residence permit was
declared inadmissible. On 18 July 1995, the court in The Hague rejected the
authors' request for an order to stay their expulsion. Since no appeal
possibility is said to exist against the court's decision, the authors claim
that they have exhausted all available domestic remedies.
2.5 It appears from the enclosures that the authors were no longer in
possession of their passports when they entered the Netherlands. The
documents further show that the Netherlands authorities were of the opinion
that the authors' story lacked credibility, inter alia, because X did not
mention in the first hearing his activities in support for sexual liberty
and his wife had no knowledge about his bisexuality; further, it was noted
that the authors had never reported the abduction of their son to the local
authorities, so that it cannot be said that the authorities failed to give
them protection; nor did the authorities find any indication that the
alleged intimidation of the authors' family was linked with X's activities.
In this respect it is noted that the assault in July 1994 was reported in
the police report as a robbery and that there is no indication that the
alleged abduction of the authors' son was related to X's activities or that
State authorities were involved. Furthermore, the authors were able to leave
Georgia with a valid passport, justifying the conclusion that the authors
had not negatively attracted the attention of the Georgian authorities. In
arriving at his decision the Netherlands Secretary of Justice also based
himself on information from the Ministry of Foreign Affairs that there was
no active prosecution policy in Georgia against homosexuals.
3. The authors claim that they fear for their life if they are to return to
Georgia. In this context, they state that X's boyfriend was found killed and
that X's parents were assaulted by militia men at their home in October
1994, allegedly because they were looking for X, that his father was
abducted and found injured on 15 February 1995 and died on 16 February 1995.
They further refer to a report by the Internationale Gesellschaft für
Menschenrechte in which it is stated that killings are a common measure of
repression in Georgia.
Issues and Proceedings before the Committee
4.1 Before considering any claims contained in a communication, the
Committee must decide whether or not it is admissible under article 22 of
4.2 The Committee notes that the facts as submitted by the authors relate to
a claim of asylum but that no evidence has been adduced that the authors
could be personally at risk of being subjected to torture if returned to
Georgia. The Committee considers that no substantiation of a claim under
article 3 of the Convention has been presented and that the communication is
therefore inadmissible under article 22, paragraph 2, of the Convention.
5. The Committee against Torture decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the authors and, for
information, to the State party.
[Done in English, French, Russian and Spanish, the English text being the