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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 12 November 2002,
Having considered complaint No. 119/1998, 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 the information made available to it by the author
of the complaint and the State party,
Adopts the following decision:
1.1 The complainant is Mr. V. N. I. M., a national of Honduras born in 1966.
He is currently living in Canada, where he requested asylum on 27 January
1997. This request was rejected and he claims that his enforced repatriation
to Honduras would be a violation by Canada of article 3 of the Convention
against Torture. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the attention of the State party on 18
November 1998. At the same time, acting under rule 108 of its rule of
procedure, the Committee requested the State party not to expel the
complainant to Honduras while his complaint was being considered.
The Facts as Submitted by the Complainant
2.1 The complainant claims that, in April 1988, he was accused by the
military of having planted a bomb in a building where he was arrested, being
the only person on the scene at the time of the explosion on 19 April 1988.
While seriously injured, he was interrogated the day after his arrest and
claims that doctors amputated his arm under pressure from the military in
order to make him reveal the names of his alleged accomplices. An army
officer reportedly told a nurse and a doctor that removing part of his arm
was a way of sending a warning to other "leftists".
2.2 Following his arrest, he was detained for three years and four months
until 8 August 1991. Meanwhile, a decision by San Pedro Sula Criminal Court
No. 3 of 13 January 1989 dismissed the proceedings against him for lack of
evidence. [FN1] The complainant claims that during his detention, he was
treated by the military as if he was guilty of the bombing and was tortured
and ill-treated many times.
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[FN1] He claims that he was not released on the day of the decision because
of an appeal filed by the opposing party.
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2.3 With the help of the Pentecostalist Church, the author then contacted
the Canadian authorities to obtain refugee status in Canada, but was
informed that he had to be present himself in Canada for an application to
be valid. In April 1992, he fled to Costa Rica. During this period, his
brothers and sisters were constantly harassed by the military to make them
say where he was hiding. In May 1992, his brother was detained illegally for
five days for that purpose. He was then released, but only after having
again been threatened with death. The complainant then contacted the
Canadian Embassy in Costa Rica once more to obtain help, but this was
refused because the political situation was delicate, on account of
terrorist acts carried out by Honduran citizens during that period and the
Canadian authorities could not assist him. For lack of resources, the
complainant returned to Honduras in March 1993, where he hid in a small
village near the border with El Salvador until 1995.
2.4 In 1995, a law was adopted in Honduras inviting all citizens to report
abuses by the military. The complainant tried in vain to exercise this right
by filing various complaints against the officers who had ordered, or were
responsible for, the amputation of his arm.
2.5 In January 1996, the complainant tried to obtain a disability pension
and, in support of his claim, he needed to submit a complete medical report.
However, the hospital denied him access to his file and informed the
military of his request. The author was then arrested again by members of
the military in civilian clothes, who questioned him, beat him and stabbed
him in the abdomen. He was seriously injured and had to go into hiding
again.
2.6 The complainant also states that, after 1994, he remained in contact by
mail with Radio Moscow and some Cuban friends and that, in January 1997, the
Honduran authorities intercepted one of his letters, which was later used as
evidence of his "subversive activities".
2.7 The complainant stayed in hiding until January 1997, when he left
Honduras after having obtained a Salvadoran passport. The author arrived in
Canada and immediately applied for refugee status.
2.8 After the complainant's departure, his sister was reportedly questioned
and threatened with death at her place of work by members of the military,
who wanted to know the complainant's whereabouts.
2.9 In Canada, the complainant was first denied his request for asylum dated
17 September 1997. Following that decision, he submitted an application for
a judicial review to the Federal Court of Canada, which was rejected on 6
February 1998.
2.10 The complainant then initiated the appropriate proceedings to be
included in the "Post-Determination Refugee Claimants in Canada" class (PDRCC
application). This request was rejected and he again applied to the Federal
Court for a judicial review. The Court also rejected that application.
2.11 On 21 October 1998, the complainant filed a request for a ministerial
dispensation to be exempted from the normal application of the law on
humanitarian grounds (application for humanitarian status). This request was
rejected on 30 March 1999.
The Complaint
3.1 The complainant believes that human rights are not respected in Honduras
and that impunity for the perpetrators of abuses is the rule. He claims that
persons possessing information concerning illegal acts committed by the
military are particularly threatened, as in his own case. He therefore
considers that he may face torture, extrajudicial execution or enforced
disappearance if returned to Honduras.
3.2 In support of his allegations of the risk of a violation of article 3 of
the Convention, the complainant submits, inter alia, a detailed
psychological report referring to the existence of "chronic post-traumatic
stress" and also stating that "he fears for his physical integrity and his
anxiety level is very high … His anxiety level is so high and the tension so
great that he cannot constructively use his inner resources to solve
day-to-day problems". The complainant also indicates that the Canadian
authorities did not attach any importance to this psychological report,
stating only that it had been submitted late. In this regard, the
complainant explains that, for a number of reasons, which are primarily
financial and psychological, he has so far been unable to undergo such a
psychological evaluation.
3.3 The complainant also submitted a copy of the decision by San Pedro Sula
Criminal Court No. 3 of 13 January 1989, which found him innocent of
involvement in the 19 April 1988 attack. The Court acquitted the complainant
on the basis, inter alia, of the statements made by a number of witnesses
who corroborated the complainant's claims. [FN2]
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[FN2] The complainant also provided a statement from the Reverend Leo Frade,
Anglican Bishop of Honduras, who, having taken into consideration various
aspects of the general situation in Honduras and of the complainant's
personal situation, confirmed the author's fears.
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3.4 The complainant indicates that he has some information about the members
of the military who tortured him, particularly a certain Major Sánchez Muñoz,
and maintains that it is a well known fact that the military goes to any
lengths to remove any traces of its crimes, especially by making the victims
disappear.
3.5 In response to the Canadian authorities' argument that he lived without
any problem in Honduras for a few years following his detention, the
complainant also states that he cannot be blamed for having tried to stay in
his country.
3.6 With regard to the situation in Honduras, the complainant stresses that,
although a democratic regime now exists, the military is still a
"sub-State". As proof of this affirmation, the complainant refers to various
reports by Amnesty International and FIDH (International Federation of Human
Rights). In its 1997 report, Amnesty International indicates that at least
five former members of the National Investigation Department were killed in
circumstances suggesting extrajudicial execution; one of them was supposed
to testify about a murder reportedly committed by members of that Department
in 1994. The complainant also indicates that Honduras is one of the only
countries to have been censured many times by the Inter-American Court of
Human Rights and refers, in particular, to the Velásquez Rodríguez case,
which involved the disappearance of a student and in connection with which
the impunity enjoyed by some members of the military in Honduras was sharply
criticized.
State Party's Observations on the Admissibility of the Complaint
4.1 The State party transmitted its observations on the admissibility of the
complaint by a note verbale dated 15 September 2000.
4.2 The State party maintains that the complainant did not exhaust all
domestic remedies before submitting his complaint to the Committee. More
specifically, he did not request leave to apply to the Federal Court for a
judicial review of the decision not to grant him humanitarian status.
4.3 The State party recalls in this connection that all decisions taken by
the Canadian authorities concerning immigration are subject to judicial
review. The complainant has, moreover, availed himself of this remedy twice
before, during the proceedings which he initiated to obtain refugee status.
4.4 The State party also submits that this remedy is still open to the
complainant even though there is normally a time limit of 15 days for filing
a request. The law in fact allows for this deadline to be extended when
special grounds are adduced to justify the delay. It should also be noted
that, if this possibility of seeking a remedy had been used, the law
furthermore allowed for any decision of the Federal Court to be appealed to
the Federal Court of Appeal and likewise to the Supreme Court of Canada.
4.5 In support of its arguments, the State party refers to the decision
taken by the Committee in the R. K. v. Canada case (CAT/C/19/D/42/1996),
where it had deemed that the complaint should be declared inadmissible on
the ground of non-exhaustion of domestic remedies because the complainant
had not made an application for a judicial review challenging the rejection
of the request for asylum and had furthermore not filed an application for
humanitarian status. In the P. S. v. Canada case (CAT/C/23/D/86/1997), also
cited by the State party, the Committee had in particular deemed that the
fact that the complainant had, inter alia, failed to enter an application
for a judicial review was contrary to the principle of the exhaustion of
domestic remedies. The State party refers in addition to the Committee's
decision in the L. O. v. Canada case (CAT/C/24/D/95/1997) concerning the
absence of a request for humanitarian status.
4.6 Referring lastly to the case law of the European Court of Human Rights,
the State party argues that a judicial review is an effective remedy within
the meaning of article 13 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms and that, even in cases where the
complainant might be subjected to inhuman or degrading treatment if returned
to his country, he must observe the formalities and time limits of the
domestic procedures before turning to an international body (Bahaddar v.
Netherlands, No. 145/1996/764/965, 19 February 1998).
4.7 The State party concludes that, for these various reasons, the Committee
should declare the present complaint inadmissible on the ground of
non-exhaustion of domestic remedies.
Comments by the Complainant
5.1 In a letter dated 27 October 2000, the complainant submitted his
comments regarding the State party's observations on the admissibility of
the complaint.
5.2 The complainant maintains first of all that he availed himself of the
opportunity to apply for a judicial review of the decision by which he was
denied refugee status, that being the last remedy in all of the proceedings
which he had pursued, and had addressed the very substance of the claims
made in support of his request for asylum. The subsequent appeals and
remedies had concerned only matters of procedure.
5.3 The complainant also states that his application for a judicial review
of the decision rejecting the PDRCC application was based on the same
arguments as that which could have been made against the decision on his
humanitarian status and points out that the two proceedings were concurrent.
He therefore considers that applying for a judicial review of the decision
on his humanitarian status would have made little sense because the Federal
Court would certainly not have decided otherwise than in the other
proceeding.
5.4 The procedure to include a person in the "Post-Determination Refugee
Claimants in Canada" (PDRCC) class and the request for humanitarian status
are not, according to the complainant, valid remedies in international law
because they are entirely discretionary. Likewise, judicial reviews made
where applicable by the Federal Court are also not valid under international
law because they cannot give rise to a final decision and the case must be
referred back to the administrative authorities for a new decision.
Furthermore, following its consistent practice, the Federal Court deals not
with questions of fact, which are to be determined entirely at the
discretion of the administrative authorities, but only with the observance
of such principles as must guide the administrative proceedings.
5.5 The complainant refers in this connection to the reasons why domestic
remedies must be exhausted under article 22 of the Convention. He submits
that the domestic remedies to be exhausted cannot be incapable of offering
any chance of success. This applies, according to the complainant, to the
judicial review in question, since the practice whereby the review deals
only with matters of procedure and not with the facts or the law is
particularly well established in the Federal Court of Canada. An application
for a judicial review to show that a person runs a real risk of being
tortured in the country to which the authorities wish to return him
therefore has no chance of success.
5.6 According to the complainant, the remedies to be exhausted are those
which make it possible to establish, where appropriate, the violation of the
right invoked. Thus, the application for asylum and the ensuing application
for a judicial review, notwithstanding the doubt as to its effectiveness, as
discussed above, are remedies that, in the complainant's view, have to be
exhausted. By contrast, the complainant maintains that the application for
humanitarian status and any ensuing application for a judicial review are
not remedies which must be exhausted because, even if, in some cases, it is
justified to make use of extraordinary remedies, this cannot be the rule for
an entirely discretionary remedy such as the application for humanitarian
status. The complainant refers in this connection to C. Amerasinghe (Local
Remedies in International Law, p. 63), according to whom it is not necessary
to make use of an extraordinary remedy if it is only discretionary and
non-judicial, as in the case of those whose purpose is to obtain a favour
and not to claim a right. Now, it has been established, and is not contested
by the State party, that the purpose of the application for humanitarian
status is not to secure a right, but, rather, to obtain a favour from the
Canadian State; this point has, moreover, been emphasized on many occasions
by the Federal Court.
5.7 Applications for a judicial review of discretionary decisions like those
following a request for humanitarian status are no more effective, even when
the Federal Court examines the merits of the case. The complainant
illustrates this contention with reference to a similar case, where the
decision on an application for humanitarian status had been the subject of a
judicial review in which the Federal Court had found that the person
concerned was indeed at risk of being subjected to torture or inhuman or
degrading treatment. Being unable to take a final decision in such a
proceeding, however, the Federal Court had had to refer the case back to the
administrative authority, which took a new decision that was contrary to the
Federal Court's findings and refused to grant humanitarian status. The
complainant considers that the fiction of the judicial review is thereby
demonstrated all the more clearly.
5.8 Deeming that he has shown the inadequacy and ineffectiveness of the
remedies which he is reproached with not having employed, the complainant
then submits to the Committee his contention that the State party has not
assumed the burden of proof necessary for it to establish that effective
domestic remedies are still available. He refers in this connection to the
case law of the Inter-American Court of Human Rights in the Velásquez
Rodríguez v. Honduras case, according to which it is for the State which
contests the exhaustion of all remedies to prove that there are remedies
still to be exhausted and that those remedies are effective. The
complainant, therefore suggests that the Inter-American Court of Human
Rights has transferred the burden of proof of the exhaustion of all remedies
from the complainant to the State. He observes that this is also the case
law applied by the Human Rights Committee, which requests the State, in
addition to giving details of the remedies available, to provide evidence
that there is a reasonable chance of those remedies being effective. In the
complainant's view, that should also be the approach of the Committee
against Torture.
5.9 After making a more general criticism of the State party's regulations
concerning refugees and of the procedures relating thereto, the complainant
submits that he has offered proof of his rights and of the risks facing him
if returned to Honduras.
5.10 In conclusion, the complainant considers that the rule of the
exhaustion of domestic remedies should be interpreted with reference to the
objectives of the Convention against Torture. In this connection, he
emphasizes that this principle is furthermore applied by the European Court
of Human Rights, which has expressly stated that the European Convention on
Human Rights should be interpreted with reference to its ultimate objective
of ensuring the effective protection of human rights.
5.11 In a letter dated 18 April 2001, the complainant indicates that on 1
November 2000 he finally decided to submit an application to the Federal
Court for a judicial review of the decision not to grant him humanitarian
status. However, the court rejected the application for a judicial review on
2 March 2001. Therefore, while maintaining the arguments he set forth
previously concerning the principle of the exhaustion of domestic remedies,
the complainant considers that the arguments originally put forward by the
State party are no longer an obstacle to the admissibility of his complaint.
The Committee's Decision on Admissibility
6.1 At its twenty-sixth session from 30 April to 18 May 2001, the Committee
considered the admissibility of the complaint. It thus ascertained that the
same matter has not been, and is not being, examined under another procedure
of international investigation or settlement and noted that the complaint
was not an abuse of the right to file a complaint and is not incompatible
with the provisions of the Convention.
6.2 With regard to the admissibility criterion of the exhaustion of domestic
remedies, as provided for in article 22, paragraph 5 (b), the Committee
noted that the proceedings instituted by the complainant had gone on for a
period of over four years and considered that any further extension of that
period would in any case have been unreasonable. Consequently, the Committee
declared the complaint admissible.
State Party's Observations on the Merits
7.1 In its note verbale of 15 September 2000, the State party transmitted
its observations on the merits of the complaint together with those on
admissibility.
7.2 The State party recalls, first of all, that it is up to the complainant
to prove that he runs the risk of being tortured if he is returned to his
country. Referring to the jurisprudence of the European Court of Human
Rights and the work entitled United Nations Convention against Torture: A
Handbook, the State party also recalls that an act of torture involves
severe suffering, since intense pain is the main feature that distinguishes
torture from other inhuman treatment. Referring to the forward-looking
nature of article 3 of the Convention, the State party stresses that the
fact that the person was tortured in the past does not necessarily mean that
he may be subjected to similar treatment in future. With regard to the
Committee's jurisprudence, the State party also explains that that there
must be a foreseeable, real, present and personal risk of torture, thereby
implying, inter alia, that it is not enough for a consistent pattern of
gross, flagrant or mass violations of human rights to exist in the country
of origin. On the basis of several of the Committee's earlier decisions, the
State party gives a non-exhaustive list of relevant indicators for the
purposes of the implementation of article 3 and, in particular, the
existence of independent medical and other evidence in support of the
complainant's allegations, possible changes in the country's human rights
situation, the existence of political activities by the complainant, proof
of his credibility and factual errors in what he says.
7.3 In the present case, the State party maintains that the complainant has
not established that there was a foreseeable, real and personal risk that he
would be subjected to torture because he is not credible, there is no
evidence that he is wanted by the Honduran authorities and he has not
established that there is a pattern of mass violations of human rights in
Honduras.
7.4 The State party contests the complainant's credibility, particularly
because he gave different explanations of the reasons why he was in the
place where the explosion occurred. The decision to release him stated that
he had gone there to make some telephone calls, whereas he told the Canadian
authorities that he had gone there to find some documents for a university
examination, and, according to a Honduran newspaper, he went into the
building because he had seen a light inside. The complainant's claims that
the amputation of his arm and the stomach operation he underwent were
unnecessary are also not credible because the above-mentioned decision
indicates that he was right near the place where the explosion occurred and
parts of a hand were found there. The complainant himself stated that he had
been blinded by a flash of light and that his eyes and ears were bleeding,
that he felt that his arm had been injured and that he had been able to
crawl out onto a balcony to call for help. The State party therefore
considers that, in view of these elements, it is more than likely that the
amputation of his arm was necessary, as was the stomach operation to remove
a foreign body. The complainant also contradicted himself about his marital
status, having stated in the information file that he was single and had no
children, whereas, in the visa application he made in 1995, he had said that
he had a wife and two children. He also contradicted himself about a job he
held from 1993 to 1995. In addition, he did not give any credible
explanations of these contradictions and inconsistencies, something which
the psychological report can also not explain.
7.5 The State party also considers that, objectively, the complainant has
never been an active opponent or member of an opposition group, that there
is no evidence that he is wanted by the Honduran authorities, since he was
able to obtain an exit passport in 1997 and the members of his family have
never had any problems with the authorities, apart from his brother's
detention for five days, that he lived in his country without any problems
from 1993 to 1995 and that he left his country four times and returned to it
voluntarily each time. He also did not apply for refugee status in Guatemala
or Costa Rica, which have both signed the Geneva Convention relating to the
Status of Refugees.
7.6 The State party maintains that there is little documentary evidence to
support the complainant's fear resulting from his denunciation of abuses of
power by the army because there are not only very few disappearances at the
present time - and those that do exist primarily involve human rights
advocates and criminals - but several members of the military have also been
prosecuted for abuses of power. The State party argues that Honduras is not
a country where there is a consistent pattern of gross human rights
violations and that its situation has changed substantively since the 1980s.
In support of this assertion, the State party emphasizes, for example, that,
according to a report by the United Nations Development Programme, the
number of cases of torture in Honduras dropped from 156 in 1991 to 7 in
1996. The 1999 report by the Special Rapporteur of the Commission on Human
Rights on torture does not refer to any case of torture and, for the period
prior to 1999, the State party stresses that the Government of Honduras has
always replied to the Special Rapporteur's questions. A number of urgent
appeals relating to executions were made by the Special Rapporteur on
extrajudicial, summary or arbitrary executions for the period from 1997 to
1999. The reports of the Working Group on Arbitrary Detention for 1997, 1998
and 1999 do not refer to any case of torture involving Honduras. The reports
of the Working Group on Enforced or Involuntary Disappearances show that
most cases of disappearances took place between 1981 and 1984 and the 1998
report refers to only one case of a disappearance involving a Jesuit priest.
As far as the other documentary sources are concerned, the State party
indicates that, in 1999, Amnesty International referred to violations of the
human rights of human rights advocates, that the 1999 Human Rights Watch
report does not deal with Honduras and that the United States State
Department "Country Reports on Human Rights Practices for 1999" states that
human rights were generally respected in Honduras during the period under
review, although serious problems continue to exist with regard to some
allegations of extrajudicial executions by members of the security forces.
Lastly, with regard to the FIDH document submitted by the complainant, the
State party stresses that it refers to human rights advocates, something
which the complainant cannot claim to be. In conclusion, the State party
maintains that, although this information does reflect some definite
concerns, there is no consistent pattern of gross, flagrant or mass
violations of human rights in Honduras and that the documentary evidence
does not support the allegation of the danger of torture made by the
complainant, who has never opposed the Government and never been part of an
organization that does.
7.7 The State party draws the Committee's attention to the fact that this
type of evaluation is entrusted at the internal level to highly specialized
and experienced bodies and that the latest evaluation is subject to
monitoring by the Federal Court of Canada. Referring to the Committee's
general observation on article 3, as well as the Committee's jurisprudence,
the State party expresses the view that it is not up to the Committee to
substitute its own evaluation of the facts for that of the authorities,
since the complainant's case does not reveal any blatant errors, abuse of
procedure or any other irregularity and the standard of article 3 has been
applied by the Canadian authorities in the evaluation of the present case.
Issues and Proceedings Before the Committee
8.1 The Committee must decide whether the claimant's return to Honduras
would be a breach of the State party's obligation 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 would be in danger of being
subjected to torture.
8.2 As provided in article 3, paragraph 1, the Committee must decide whether
there are substantial grounds for believing that the complainant would be in
danger of being subjected to torture if he were returned to Honduras. In
order to take this decision, the Committee must take into account all
relevant considerations, in accordance with article 3, paragraph 2,
including the existence of a consistent pattern of gross, flagrant or mass
violations of human rights. However, the purpose of this analysis is to
determine whether the person concerned would personally be in danger of
being subjected to torture in the country to which he would be returned. It
follows that the existence in a country of a consistent pattern of gross,
flagrant or mass violations of human rights is not in itself a sufficient
reason for establishing that a particular person would be in danger of being
subjected to torture if he were returned to that country. There must be
other reasons to suggest that the person concerned would personally be in
danger, but the absence of a consistent pattern of flagrant violations of
human rights does not mean that a person cannot be subjected to torture in
his own particular situation.
8.3 The Committee draws attention to 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).
8.4 In the present case, the Committee takes note of the State party's
observations that the claimant's statements about the risks of torture are
not credible and not corroborated by objective evidence.
8.5 On the basis of the information submitted to it, the Committee considers
that the complainant has not demonstrated that he is an opponent of the
regime who is wanted for terrorist activities. The Committee notes that he
was acquitted of responsibility for the 1988 explosion and that he has not
been accused of other opposition activities since then. He has thus not
shown that there is a personal risk of being subjected to torture if he
returns to Honduras. Accordingly, the Committee takes the view that it is
not necessary to examine the general human rights situation in Honduras and
that the claimant has not demonstrated that there are substantial grounds,
in accordance with article 3 of the Convention, for believing that he would
be in danger of being subjected to torture if he returned 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, concludes that the return of the
complainant to Honduras would not constitute a breach of article 3 of the
Convention.
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