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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 May 2001,
Having concluded its consideration of communication No. 128/1999, 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 by the author of
the communication and the State party,
Adopts the following decision:
1.1 The author of the communication, Mr. X.Y., born on 20 March 1960, is a
Syrian national of Kurdish origin. He currently resides in Switzerland,
where he applied for political asylum. His application was rejected, and he
maintains that his forcible repatriation to the Syrian Arab Republic would
constitute a violation by Switzerland of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He
has asked the Committee to take emergency measures, since at the time he
submitted his communication he was liable to imminent expulsion. He is
represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 12 March 1999.
At the same time the State party was requested, pursuant to rule 108,
paragraph 9, of the Committee's rules of procedure, not to expel the author
to the Syrian Arab Republic while his communication was under consideration
by the Committee. In a submission dated 12 May 1999 the State party informed
the Committee that steps had been taken to ensure that the author was not
returned to the Syrian Arab Republic while his case was pending before the
Committee.
The Facts as Submitted by the Author
2.1 The author claims that he has been a member of the Kurdistan Democratic
Party in Iraq (KDP-Iraq) [FN1] since 1980. As such, he allegedly
participated in various activities of that organization, chiefly by
transporting funds to support Kurds in Iraq and by distributing pamphlets
deploring the situation of the Syrian Kurds, who had been stripped of their
nationality by the Syrian State.
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[FN1] The file contains a document dated 12 July 1995 certifying the
author's membership in KDP-Europe, based in London; the document states that
the author, whose name is misspelled, was a party member and had "taken part
in the resistance movement and in the struggle for peace and democracy".
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2.2 The author claims that he was twice arrested by the Syrian security
forces. The first time, during the Iraqi invasion of Kuwait, he was in
possession of funds intended for Iraq. He was freed after 18 days, only
after a large sum of money had been paid by his family for his release. The
second arrest reportedly took place in 1993. On that occasion, the author
was held for 96 days in Mezze prison near Damascus and was reportedly
tortured. He was released only after swearing to forgo any political
activities in the future. His family again paid approximately 6,000 United
States dollars to secure his release.
2.3 Subsequently, however, the author continued his political activities. In
March 1995 he was warned by a family member who had reportedly received
information from the security services that he was going to be arrested once
again. The author then decided to flee the country and crossed the border
into Lebanon illegally. He left Lebanon by boat in March, but it is not
clear when he arrived in Europe. Nevertheless, on 10 April 1995 he applied
for political asylum in Switzerland, largely on the basis of his alleged
persecution in the Syrian Arab Republic.
2.4 The author's request for asylum was turned down on 28 May 1996 by the
Federal Office for Refugees as being implausible, and 15 August 1996 was set
as the deadline for the author's departure from Swiss territory.
Subsequently the author appealed against that decision to the Swiss Appeal
Commission on Asylum Matters, supporting his appeal with a medical report
certifying that he might have been tortured in the past. The Appeal
Commission dismissed the appeal on 8 July 1996, declaring it inadmissible on
the grounds that the deadline for submission of an appeal had not been met.
2.5 On 8 August 1996 the author submitted a request for reconsideration of
his case (an extraordinary recourse allowing for review of decisions that
had already been executed) by the Federal Office for Refugees. The applicant
specifically requested that it should be noted that execution of his
expulsion from Switzerland constituted a violation of the principle of non-refoulement
set out in the Convention on the Status of Refugees (art. 33), the
prohibition of torture contained in article 3 of the European Convention on
Human Rights and articles 2 and 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. The Federal
Office for Refugees rejected the request for reconsideration on 9 August
1996, maintaining that the applicant had not presented any new facts or
evidence but was merely seeking to have the facts set out in his initial
appeal considered in a different light. (The Federal Office for Refugees
also ordered the immediate execution of the applicant's expulsion from
Switzerland, on the grounds that it was not contrary to Switzerland's
legislative or treaty obligations.)
2.6 On 8 September 1996 the author appealed against the decision of the
Federal Office for Refugees. In the light of the new appeal, in which the
author sought to prove that execution of his expulsion was wrongful under
the Convention relating to the Status of Refugees and the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the
Swiss Appeal Commission on Asylum Matters suspended execution of the
expulsion and authorized the author to remain in Switzerland pending the
outcome of his appeal. The Federal Office for Refugees was consulted in the
context of that appeal, and on 29 April 1997 it upheld its position that the
applicant's expulsion to the Syrian Arab Republic would place him in
physical danger. As part of the same appeal, the author's counsel maintained
his conclusions on 20 May 1997.
2.7 The appeal was considered on the merits and rejected by a decision of
the Appeals Commission dated 18 June 1998; the Commission held that the
applicant had not provided grounds for reconsideration of his case and that
he faced no real risk of torture should he be sent back to the Syrian Arab
Republic. Following that decision the author was invited to leave Swiss
territory by 15 February 1999.
Merits of the Complaint
3. The author bases his complaint on the allegation that if he is sent back
to the Syrian Arab Republic by Switzerland he risks being subjected to
cruel, inhuman and degrading treatment; specifically, he risks being
tortured by the authorities. He also believes that, if sent back, he would
risk torture because he left the Syrian Arab Republic illegally. In the
author's view, it is clear that a consistent pattern of gross, flagrant and
massive violations of human rights exists in that country which, under
article 3, paragraph 2, of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, constitute circumstances that
a State party must take into account when deciding to expel someone.
Consequently, the author believes that Switzerland should not expel him, or
else risk violating the Convention.
Observations by the State Party on Admissibility
4.1 In its note dated 12 May 1999, the State party describes the various
stages of the process followed by the author in seeking asylum. It
specifically faults the author for not meeting the deadlines for appealing
against the decision by the Federal Office for Refugees not to grant
political asylum. The State party claims that failure to meet the deadline
for filing an appeal made it necessary for the Swiss Appeal Commission on
Asylum Matters to conduct an extraordinary review of the case, based solely
on the existing case file, in order to determine whether the applicant faced
an obvious risk of persecution or treatment that violated human rights in
his country of origin. That review, according to the State party, was
narrower in scope than the review that the Appeal Commission would have
conducted had the appeal been filed through regular channels. Nevertheless,
the State party declares that it does not contest the admissibility of the
communication.
The Author's Comments on the State Party's Observations on Admissibility
5.1 The author addresses his comments to the observations made by the State
party on 28 June 1999. He acknowledges that the review process focused
exclusively on whether Switzerland had complied with its international
obligations and not on Swiss legislation governing asylum. The author refers
to the jurisprudence of the Swiss Appeal Commission on Asylum Matters (JICRA
1995, No. 5), which states that "an applicant for asylum had the right,
independently of formal questions of deadlines, to have the question of
whether his or her expulsion was executed in accordance with the principle
of non-refoulement (article 33 of the Convention relating to the Status of
Refugees) or the prohibition of torture and other inhuman treatment (article
3 of the European Convention on Human Rights or article 3 of the Convention
against Torture) considered at any time. These principles are in fact held
to be absolute, and the expiry of a procedural deadline cannot be used to
justify their violation".
5.2 Accordingly, the author declares that the decision issued by the Swiss
Appeal Commission on Asylum Matters on 18 January 1999, from the standpoint
of article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, concerned the question of the risk of
torture he faced if he was sent back to the Syrian Arab Republic. This
proves, in the author's view, that the question on which the Committee was
being asked to rule had already been considered by the competent national
authority.
Observations by the State Party on the Merits
6.1 The State party transmitted its remarks on the merits of the
communication on 13 September 1999. It reviewed the procedure followed in
the case and stated that with regard to the final decision - that taken by
the Appeal Commission on 18 January 1999 - the Appeal Commission had
conducted a review that was narrower in scope than would have been the case
had the author followed the ordinary appeal procedures.
6.2 The State party contends that the communication contains no new
information beyond that considered when the case was dealt with through
national procedures.
6.3 Secondly, the State party points out that the author had not provided
any evidence to support several of his allegations, particularly with regard
to the statement that he had been detained in a prison in Damascus for 96
hours for having criticized the regime and that he had been released only
after his family had paid money and he had signed a statement renouncing
politics. The author's release was not documented. The State party also
maintains that the act of distributing anti-Government pamphlets ought to
have resulted in a heavy prison sentence. Given that the payment of money by
his family was not proved and that the author had been released after only
three months of detention, the State party believes that this can be taken
to indicate the unlikelihood of the author's alleged KDP activities.
6.4 The State party then proceeds to review the overall human rights
situation in the Syrian Arab Republic and comment on several of the
documents submitted by the author with regard to the situation of Kurds in
that country. While giving credence to some of the information provided, it
recalls the Committee's practice, which holds that the existence in a
country of gross, flagrant or massive violations of human rights does not in
itself constitute grounds for stating that a person risks being subjected to
torture upon his or her return to that country.
6.5 Next the State party considers the author's personal situation with a
view to confirming whether there were serious grounds for admitting that he
was likely to be subjected to human rights violations in the Syrian Arab
Republic. According to the State party, KDP-Iraq was not an illegal
organization in Iraq; moreover, it appears to have enjoyed the support of
the authorities. According to various sources, the Syrian security forces
persecuted KDP activists only if the security of the Syrian State was
threatened by their actions - for example, activities hostile to the Syrian
regime, which does not seem to apply in the present case. The State party
concludes that under these circumstances it can be concluded that the author
ran no special risk of being subjected to treatment in violation of article
3 of the Convention if he returned to the Syrian Arab Republic, particularly
as the alleged arrests dated back six and eight years.
6.6 The State party maintains that the documents from KARK-Switzerland [FN2]
and KDP-Europe submitted by the author certifying that he was a member of
KDP-Iraq cannot in themselves prove that the author was likely to be
subjected to prosecution or treatment that contravened article 3 of the
Convention if he was sent back to his country.
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[FN2] KARK appears to be a Kurdish academic and intellectual society. The
file contains the association's statutes and written testimony from Mr. A.
M., a resident of Lausanne, who on 6 March 1996 said that he had visited the
Syrian Arab Republic in July 1991 in order to collect material on the human
rights situation of the Kurds. He states that to that end he sought the help
of KDP-Iraq local offices. He was accompanied on his travels by the author
(whose name is again misspelled), who had been introduced to him as someone
who was very active in the KDP-Iraq movement and who had therefore been
followed and arrested several times by the Syrian security services. The
author had told him that because of his membership in KDP-Iraq, his life and
the lives of his family members were in danger, and that he could no longer
remain in the country because he was constantly being followed by the secret
service.
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6.7 According to the State party, the author never reported that he had been
subjected to torture, either during the hearings at the transit centre or to
the Federal Office for Refugees. The author's counsel apparently reproached
the authorities with failing to question the petitioner on that specific
point. The State party replies that it could "legitimately be expected that
a person who subsequently claimed he had to leave his country for fear of
being subjected again to torture would at least mention this circumstance
when questioned in the host country about the reasons for applying for
asylum".
6.8 The State party queries the fact that the author only produced a medical
certificate dated 20 August 1996 [FN] stating that he could have been
subjected to torture in the past when he appeared before the Swiss Appeal
Commission on Asylum Matters and not when filing his initial application for
asylum. The State expresses surprise that a seeker of asylum on grounds of
torture waited to have his application turned down before producing a
medical certificate, whose evidential status was, moreover, compromised by
the fact that three years had passed since the alleged facts. The State adds
that, even if one considered the author's allegation that he had been
subjected to torture in the past to be well founded, it did not follow that
he ran a foreseeable personal and present risk of being subjected to torture
again if he was returned to the Syrian Arab Republic. [FN4]
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[FN3] The certificate was drawn up by the Hôpitaux universitaires de Genève
on 20 August 1996 at the request of the author's counsel. It is based on two
interviews with the author and sets forth the facts as presented by him with
details of the acts of torture to which he was allegedly subjected. With
regard to his physical condition, the doctors describe it as being within
the bounds of normality but mention a number of scars on his body (a fine
bow-shaped scar at the base of the first toe of his right foot, three round
scars on his left hand and wrist, and a star-shaped scar on his left cheek).
With regard to his psychological condition, they say that the author was
cooperative, with sound temporal and spatial orientation and without major
memory disorders, but that he had trouble remembering specific dates
accurately. They note a tendency towards dissociation when scenes of
violence were mentioned. A reading of the medical report provoked
considerable nervousness and agitation. The doctors consider that the
author's description of the scenes of torture are compatible with what is
known about the treatment of opponents of the regime in Syrian prisons,
especially Mezze prison (see Amnesty International Report 1994, pp.
319-322). The scars correspond to his description of the torture he
allegedly suffered, and the lesions are probably the sequelae of torture.
Taking this and his psychological condition into account, the doctors
diagnose post-traumatic stress syndrome (PTSS), a characteristic disorder of
torture victims. The doctors go on to state that "we therefore conclude that
there has been a flagrant violation of human rights. Under these
circumstances and in view of the fact that the Kurdish issue in Syria has
not been settled, the return of [the author] to his country would condemn
him to renewed acts of violence ...". The doctors further conclude that the
PTSS is in remission for the time being because the author feels safe in
Switzerland. His refoulement would probably lead to a return of the
symptoms, whose seriousness should not be underestimated. Moreover, as far
as treatment is concerned, the doctors state that, to their knowledge, the
type of medical care needed to stabilize the author's condition
(physiotherapy and supportive psychotherapy) do not exist in the Syrian Arab
Republic.
[FN4] In this connection, the State party refers to the Committee's
jurisprudence, in particular communications I.A.O. v. Sweden (65/1997) and
X, Y and Z v. Sweden (61/1996), in which the Committee, while finding that
medical certificates established that the authors had been subjected to
torture, nevertheless considered that it had not been shown that the authors
would be in danger of being subjected to torture if they were returned.
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6.9 With regard to the author's fears of being exposed to inhuman and
degrading treatment for having left Syrian territory illegally, the State
party notes that the author's allegations that he had left the Syrian Arab
Republic under threat of reprisals by the Syrian authorities lacked
credibility. There is no evidence to back the claim that the author's uncle
had been warned of his imminent arrest. However, evidence that the
petitioner was under threat at the time of leaving his country is, the State
party notes, a prerequisite for the granting of asylum. Moreover, the author
has not furnished proof of having left Syrian territory illegally. And even
if he had, the penalty for such an offence would be a fine or term of
imprisonment, which cannot be considered to be a breach of article 3 of the
Convention.
6.10 With regard to the risks incurred by the author for having applied for
asylum in Switzerland, the State party considers that the Syrian authorities
would not subject him to inhuman or degrading treatment solely on that
account, since they are aware of the fact that many of their nationals try
in this way to obtain residency permits in Europe. The State has no concrete
evidence to the effect that asylum-seekers returned to the Syrian Arab
Republic are subjected to treatment that violates article 3 of the
Convention.
6.11 Lastly, the State party considers the author's allegation that he would
risk persecution because of his close links in Switzerland with movements
that opposed the Syrian regime. The State party notes that the author's
statements on the subject are very vague and insubstantial, indicating that
the activities in question were on a very limited scale; otherwise, the
author would have described them in detail to the Swiss asylum authorities
in his own interest.
6.12 The State party concludes that, under the circumstances and following
careful scrutiny of the case, substantial grounds do not exist for believing
that the author would be in danger of being subjected to torture if he was
returned to the Syrian Arab Republic. The State party refers to the
Committee's general comment of 21 November 1997 in support of its argument
that the communication does not contain the minimum factual basis needed to
back up the author's allegations. The State requests the Committee to find
that the return of the author to his country of origin would not constitute
a violation of Switzerland's international obligations.
The Author's Comments on the State Party's Observations
7.1 The author submitted his comments on 14 January 2000. With regard to the
lack of evidence of arrest and torture, he states that the practical
difficulties involved in gathering such evidence have been overlooked. Any
attempt to obtain such documents at present would place his family and those
connected with him in danger. He claims not to have received any document on
his release that could serve as proof of his imprisonment.
7.2 The author draws attention to a number of reports concerning the
situation of the Kurds in the Syrian Arab Republic. In particular, he claims
that, according to the Amnesty International Report 1999, although some
Kurds arrested in 1997 were released in 1999, others were still in prison
for distributing pamphlets hostile to the regime.
7.3 With regard to the delay in making the allegation of torture, the author
claims that the Committee itself has repeatedly emphasized that it is quite
understandable for a torture victim initially to remain silent about his
sufferings. As to the certificate containing the findings of torture, the
author argues that the Committee does not, in any case, require absolute
proof of a risk of future persecution but is satisfied with substantial
grounds for fearing a violation of the Convention. The medical report meets
the criteria usually required and was issued by an institution of the
highest standing (Hôpitaux universitaires de Genève), so that no doubt can
be cast on the conclusions of the medical examination.
7.4 With regard to his illegal departure from the Syrian Arab Republic, the
author states that he agrees with the State party's comment about the
consequences of illegal departure in most cases. In his own case, however,
given his political activities, his Kurdish origin and the circumstances of
his departure, it should be borne in mind that his illegal departure could
be used against him and lead to assaults on his person, in contravention of
article 3 of the Convention.
Issues and Proceedings Before the Committee
8.1 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. It 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. It notes also that
all domestic remedies have been exhausted and that the State party has not
contested the admissibility of the communication. It therefore considers
that the communication is admissible. As both the State party and the author
have provided observations on the merits of the communication, the Committee
proceeds to consider those merits.
8.2 The issue before the Committee is whether the forced return of the
author to the Syrian Arab Republic would violate the obligation of the State
party under article 3 of the Convention not to expel or return a person to
another State where there are substantial grounds for believing that he or
she would be in danger of being subjected to torture.
8.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture upon return to the Syrian Arab
Republic. In reaching this decision, the Committee must take into account
all relevant considerations, pursuant to article 3, paragraph 2, 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 or her return to the country. There must be
other grounds 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 might not be subjected to
torture in his or her specific circumstances.
8.4 The Committee recalls 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).
8.5 The Committee expresses doubts about the credibility of the author's
presentation of the facts, since he did not invoke his allegations of
torture or the medical certificate attesting to the possibility of his
having been tortured until after his initial application for political
asylum had been rejected (paras. 6.7 and 6.8 of the present decision).
8.6 The Committee also takes into consideration the fact that the State
party has undertaken an examination of the risks of torture faced by the
author, on the basis of all the information submitted. The Committee
considers that the author has not provided it with sufficient evidence to
enable it to consider that he is confronted with a foreseeable, real and
personal risk of being subjected to torture in the event of expulsion to his
country of origin.
9. Consequently, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, considers that the decision of the State
party to return the author to the Syrian Arab Republic constitutes no
violation of article 3 of the Convention.
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