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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 16 November 1998,
Having concluded its consideration of communication No. 88/1997, submitted
to the Committee 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, her counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is Mr. Avedes Hamayak Korban, an Iraqi
citizen born in 1940, currently residing in Sweden where he is seeking
asylum. He claims that his forced return to Iraq would constitute a
violation by Sweden of article 3 of the Convention against Torture. He is
represented by counsel.
Facts as Presented by the Author
2.1 The author was a resident of Kuwait since October 1967. He states that,
because of his opposition to the Iraqi regime, he stayed in Kuwait as a
refugee after the Gulf war. However, because of his nationality, he was
imprisoned on three occasions, tortured, in particular through electric
shocks, and finally deported to Iraq on 22 September 1991. Upon arrival at
the border he was arrested and transferred to Baghdad, where he was
interrogated at the headquarters of the Iraqi intelligence services. Later
on he was released on bail and ordered to report daily to the government
representative in his neighbourhood, as he was suspected of being an
informer for the Kuwaiti authorities on the grounds that he did not leave
Kuwait when the Iraqi army withdrew. He states that he managed to leave the
country with his family through bribes and arrived in Jordan, his wife's
country of nationality.
2.2 In Jordan he was refused a residence permit in November 1991 and was
only given a six-month temporary visa. When that visa expired he had to pay
one dinar for each day he remained in the country. He states that he tried
unsuccessfully to obtain permanent residence. In 1993 he went back to Iraq
to visit his dying mother and was first kept in detention for 14 days and
then under house arrest, having to report to the government representative
every day. According to the author, this representative advised him to leave
Iraq since his safety in the country was at risk. He went back to Jordan
where he remained, without a residence permit, until June 1994. He arrived
in Sweden via Turkey on 13 June 1994. His son lives in Sweden where he
obtained a permanent residence permit after having deserted from Iraqi
military service during the Gulf war. The author alleges that, according to
Iraqi law, he is considered responsible for his son's defection, and for
that reason as well his situation in Iraq would be difficult. The author's
wife and daughters are apparently still living in Jordan.
2.3 On 26 September 1994 the Swedish Immigration Board decided to reject the
author's application for a residence permit and ordered his expulsion to
Jordan. The Board found that the author's connections with Jordan
constituted substantial grounds to assume that he would be received in that
country and that there was no danger for him to be sent from Jordan to Iraq.
The Aliens Appeals Board, sharing the opinion of the Swedish Immigration
Board, dismissed the author's appeal on 11 September 1996. In 1997 the
author lodged three new applications which were all rejected by the Aliens
Appeals Board.
The Complaint
3.1 The author claims that his return to Iraq would constitute a violation
of article 3 of the Convention against Torture by Sweden, since there are
risks that he would be arrested and subjected to torture in that country. He
also claims that, not having a residence permit in Jordan, it is unsafe for
him to return to that country from which he fears to be sent back to Iraq
since the Jordan police work closely with the Iraqi authorities.
3.2 In support of his claim the author provides the Committee with copies of
two letters dated 20 December 1994 and 17 October 1996 in which the Office
of the United Nations High Commissioner for Refugees (UNHCR) informed the
Swedish Aliens Appeals Board that foreigners married to Jordanian women did
not enjoy any preferential treatment when applying for residence permits in
Jordan and that marriage to a Jordanian citizen was not grounds for being
granted residency in Jordan; special authorization had to be obtained from
the Ministry of Interior. He also provided copy of a letter dated 27 March
1997 in which UNHCR informed the Advice Bureau for Asylum Seekers and
Refugees in Stockholm about cases of Iraqis denied entry or readmission into
Jordan upon being returned from Sweden and Denmark.
State Party's Observations
4.1 On 16 September 1997 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 Jordan or Iraq while his communication was under
consideration by the Committee.
4.2 In its submission to the Committee the State party indicates that the
author applied from Jordan for a visa to Sweden in September 1993 and that
in his application he stated that he had permission to stay in Jordan. The
application was rejected by the Swedish Immigration Board on 14 December
1993. He then entered Sweden on 13 June 1994 and applied for asylum on the
following day, claiming that he did not dare to stay in Jordan as he feared
that, due to the presence of the Iraqi security police in that country, he
might be sent back to Iraq where he risked being persecuted.
4.3 The Swedish Immigration Board and the Aliens Appeals Board dismissed his
applications and ordered his expulsion to Jordan. However, following the
Committee's request not to expel the author to Iraq or Jordan while his
communication was under consideration by the Committee, the Swedish
Immigration Board decided on 24 September 1997 to stay the enforcement of
its decision until further notice, pending the Committee's final decision in
the matter.
4.4 With respect to the admissibility of the communication, the State party
submits that the author can at any time lodge a new application for
re-examination of the case, provided that new circumstances are adduced that
could call for a different decision. However, it does not raise any
objection to the admissibility.
4.5 As for the merits, the State party contends that, in determining whether
the forced return of the author would constitute a breach of article 3 of
the Convention, the following issues should be examined: (a) the general
situation of human rights in Jordan and Iraq; (b) the general situation of
Iraqi refugees in Jordan; and (c) the author's personal risk of being
subjected to torture in Jordan or after having being deported from Jordan to
Iraq.
4.6 Regarding the general situation of human rights in Jordan, the State
party finds no grounds for asserting that there exists in Jordan a
consistent pattern of gross, flagrant or mass violations of human rights.
Such pattern, however, seems to exist in Iraq. In view of that, Iraqi
nationals are normally not expelled from Sweden to their country of origin,
unless the immigration authorities find that there are objections to their
presence in Sweden from the point of view of security.
4.7 As for the general situation of Iraqi refugees in Jordan, the State
party refers to two letters submitted to the Aliens Appeals Board on 28
October 1996 and 22 September 1997 respectively, in which Amnesty
International expresses concern for the security of Iraqi nationals who are
returned from Sweden to Jordan. According to Amnesty, Iraqi citizens are
usually granted a temporary residence permit of up to six months and after
that they have to pay a daily fee to be able to stay in Jordan. Those who
cannot pay the fee or who are found without a valid passport are put in
custody while awaiting deportation. There are several cases known to Amnesty
International of Iraqis being detained and tortured in Iraq after
deportation from Jordan.
4.8 The State party also refers to the contents of the above-mentioned
letter of 27 March 1997 from UNHCR to the Advice Bureau for Asylum Seekers
and Refugees. In addition, it mentions the latest annual report on Jordan of
the United States Department of State, according to which since 1991
thousands of Iraqis have sought asylum in Jordan, where they have been given
assistance by UNHCR. The report mentions, however, two cases of forced
expulsion of Iraqis to Iraq in 1997.
4.9 According to information received through diplomatic channels by the
State party, although Jordan has not ratified the 1951 Convention relating
to the Status of Refugees it has expressed its willingness to follow the
principles contained in that Convention and the Jordanian authorities seem
to have a particular understanding for the difficult situation of the
Iraqis. In spite of that, Iraqis who return from Europe are not welcome.
Even though the Jordanian authorities claim that Iraqis are only sent back
to Iraq with their voluntary written approval, it cannot be ruled out that
some Iraqis have been sent to Iraq against their will. Although Jordan can
be characterized as a rather safe country for Iraqi refugees, their
situation may change from time to time depending on the political situation.
The relations between Jordan and Iraq have recently been "normalized", and
this may affect the situation of Iraqi refugees. According to UNHCR, if an
Iraqi is returned to Jordan after expulsion from Sweden and it is known to
the Jordanian authorities that he has been staying in Sweden, he will
probably be expelled also from Jordan. Most member States of the European
Union do not seem to regard Jordan as a safe third country for Iraqi
citizens.
4.10 The State party indicates that the information referred to in the
previous paragraph was not available to the Swedish Immigration Board and
the Aliens Appeals Board when they made their decisions concerning the
author's application for asylum. It can be inferred from it, however, that
Iraqi refugees in Jordan, in particular those who have been returned to
Jordan from a European country, are not entirely protected from being
deported to Iraq.
4.11 With regard to the personal risk of being subjected to torture, the
State party notes that the author has not expressed any fear with respect to
Jordan. As for Iraq, in view of the human rights situation in that country
and taking into consideration, inter alia, the escape of the author's son
from military service and the treatment that the author allegedly received
from the Iraqi police during his stays in Iraq after leaving Kuwait, it can
be said that substantial grounds exist for believing that, if returned to
Iraq, the author would be in danger of being subjected to torture. The
question that remains to be considered is whether the author would run a
real risk of being deported to Iraq from Jordan. The State party abstains
from making an evaluation of its own.
4.12 In a further submission dated 6 November 1998 the State party stated
that Jordan and UNHCR had recently agreed on a Memorandum of Understanding
regarding the rights of refugees in Jordan. The Memorandum contains the same
definition of refugee as appears in article 1 of the 1951 Geneva Convention,
confirming the principle of non-refoulement regarding citizens of a third
country who have been recognized as refugees by UNHCR. Thus, the Memorandum
is an additional sign of Jordan's willingness to follow the principles
contained in the Geneva Convention. There are also other signs of increasing
cooperation between Jordanian authorities and UNHCR and of a wider
understanding for the situation of Iraqi refugees.
Counsel's Comments
5.1 In her comments to the State party's submission counsel stresses that
the author's last application for asylum was rejected on 28 August 1997. By
then, the Swedish authorities had enough reliable information at their
disposal to consider that Jordan would not be a safe country for the author,
since he would be at risk of being deported to Iraq and subjected to torture
in that country.
5.2 With respect to the observations made by the State party on 6 November
1998 counsel submits copy of a letter from the UNHCR dated 11 November 1998
in which she is informed that although UNHCR considers the signature of the
Memorandum of Understanding as a very positive development it does not alter
UNHCR's view that Jordan is not a safe country of asylum for Iraqi
nationals. First, the Memorandum retains an important time limitation.
According to its article 5 a refugee should receive legal status and UNHCR
would endeavour to find recognized refugees a durable solution be it
repatriation to the country of origin or resettlement in a third country.
The sojourn of recognized refugees should not exceed six months. Secondly,
the Jordanian authorities do not apply the Memorandum to deportees from
third countries. Their practice with regard to Iraqi nationals deported back
to Jordan from third countries is either to allow their departure to Iraq or
to allow them to travel to any third country of their choice, including the
country of deportation.
Issues and Proceedings Before the Committee
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 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 to Iraq or Jordan 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 to Iraq. 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 The Committee is aware of the serious human rights situation in Iraq and
considers that the author's history of detention in that country as well as
the possibility of his being held responsible for his son's defection from
the army should be taken into account when determining whether he would be
in danger of being subjected to torture upon his return. The Committee also
considers that the presentation of the facts by the author do not raise
significant doubts as to the general veracity of his claims and notes that
the State party has not expressed doubts in this respect either. In the
circumstances, the Committee considers that substantial grounds exist for
believing that the author would be in danger of being subjected to torture
if returned to Iraq.
6.5 The Committee notes that the Swedish immigration authorities had ordered
the author's expulsion to Jordan and that the State party abstains from
making an evaluation of the risk that the author will be deported to Iraq
from Jordan. It appears from the parties' submissions, however, that such
risk cannot be excluded, in view of the assessment made by different
sources, including UNHCR, based on reports indicating that some Iraqis have
been sent by the Jordanian authorities to Iraq against their will, that
marriage to a Jordanian woman does not guarantee a residence permit in
Jordan and that this situation has not improved after the signature of a
Memorandum of Understanding between the UNHCR and the Jordanian authorities
regarding the rights of refugees in Jordan. The State party itself has
recognized that Iraqi citizens who are refugees in Jordan, in particular
those who have been returned to Jordan from a European country, are not
entirely protected from being deported to Iraq.
7. In the light of the above, the Committee is of the view that, in the
prevailing circumstances, the State party has an obligation to refrain from
forcibly returning the author to Iraq. It also has an obligation to refrain
from forcibly returning the author to Jordan, in view of the risk he would
run of being expelled from that country to Iraq. In this respect the
Committee refers to paragraph 2 of its general comment on the implementation
of article 3 of the Convention in the context of article 22, according to
which "the phrase 'another State' in article 3 refers to the State to which
the individual concerned is being expelled, returned or extradited, as well
as to any State to which the author may subsequently be expelled, returned
or extradited". Furthermore, the Committee notes that although Jordan is a
party to the Convention, it has not made the declaration under article 22.
As a result, the author would not have the possibility of submitting a new
communication to the Committee if he was threatened with deportation from
Jordan to Iraq.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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