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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 11 November 2003,
Having concluded its consideration of communication No. 215/2002, submitted
by Mr. J. A. G. V. 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 to it by the
complainant of the complaint, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant of the complaint is J. A. G. V., a Colombian citizen,
born in 1962. In his complaint dated 22 July 2002 he claimed that his
deportation to Colombia would constitute a violation by Sweden of article 3
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (henceforth referred to as "the Convention"). He is
represented by counsel.
1.2 The State party ratified the Convention on 8 January 1986, when it also
made the declaration under article 22 of the Convention. The Convention
entered into force for the State party on 26 June 1987.
1.3 In accordance with article 22, paragraph 3, of the Convention, the
Committee forwarded the complaint to the State party on 23 July 2002 for
comments and requested it, under rule 108, paragraph 1, of the Committee's
rules of procedure, not to deport the complainant to Colombia while the
complaint was under consideration by the Committee. The Committee indicated,
however, that this request could be reviewed taking into account new
arguments submitted by the State party or on the basis of guarantees and
assurances furnished by the Colombian authorities. The complainant was
deported to Colombia on 23 July 2002. In its written submission dated 30
October 2002, the State party reported that it had not been in a position to
comply with the Committee's request, since the complainant's deportation was
already taking place when the request for interim measures reached the
Government.
The Facts as Submitted to the Committee
2.1 The complainant asserts that he was a member of the Fuerzas Armadas
Revolucionarias de Colombia (Revolutionary Armed Forces of Colombia, FARC)
and of the United Confederation of Workers (CUT). He maintains that he was
arrested and tortured on several occasions during the 1990s [FN1] by
officers of the Colombian police who, he alleges, beat him, applied electric
shocks to his genitals until he lost consciousness and placed plastic bags
filled with water on his head, covering his nose and mouth. He asserts that
he escaped from prison several times.
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[FN1] The complainant does not indicate in his initial communication or in
his subsequent comments when or where these acts of torture allegedly took
place.
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2.2 The complainant says that he succeeded in leaving Colombia on a false
passport, since he was wanted by the police, and arrived in Sweden under an
identity other than his own on 25 March 1998.
2.3 On 26 May 1998, the complainant applied for a permanent residence permit
in Sweden under the identity of Celimo Torres Romero. Subsequently, on 24
July 1998, he was arrested under that name as a suspect in a
drug-trafficking case. His true identity was revealed during the police
investigations.
2.4 On 24 September 1998, the Solletuna District Court sentenced the
complainant to six years' imprisonment and expulsion from the territory of
the State party, after finding him guilty of a drug-trafficking offence,
[FN2] committed in Sweden. The complainant appealed to the Appeal Court of
Svea which, in a decision of 26 February 1999, rejected his application. He
entered prison that day and on 23 July 2002 was released on parole.
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[FN2] The offence involved smuggling a kilo of cocaine from Colombia to
Sweden with the intention of selling it in the territory of the State party.
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2.5 On 13 October 1998, the complainant applied for asylum under the
identity of José Ángel Grueso Vargas. On 25 March 1999 the Swedish Migration
Board rejected his application, on the grounds that he had applied for
asylum only after being sentenced to deportation from Swedish territory. The
complainant appealed to the Swedish Aliens Appeals Board, but his appeal was
rejected in a decision of 20 November 2000. [FN3]
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[FN3] The Swedish Aliens Appeals Board further considered that the
complainant had entered Swedish territory under a false identity, and that
under that identity he had applied in 1998 for a work permit, claiming that
he was involved with a Swedish woman, although he was married and had a
family in Colombia. In the Board's opinion, all of this seriously undermined
his credibility when it came to requiring the protection of the State party.
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2.6 On 17 July 2002, the complainant lodged a complaint with the European
Court of Human Rights but withdrew it some days later. [FN4]
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[FN4] No date is specified.
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The Complaint
3.1 In his initial submission the complainant argues that his deportation to
Colombia would constitute a violation by Sweden of article 3 of the
Convention, since he faced the risk of being subjected to further torture in
Colombia.
3.2 The complainant contends that the Swedish complainantities had no
grounds for their decision to refuse him asylum, since note was merely taken
of the fact that the Colombian Government had drawn up programmes which
would protect Mr. Grueso Vargas, without taking into account the fact that
the complainant had been tortured in Colombia. He further claims that the
Swedish complainantities based their refusal on the lack of credibility that
they attached to his assertions, although he submitted medical certificates
as evidence of torture.
State Party's Observations on Admissibility and the Merits
4.1 In its observations of 30 October 2002, the State party asserts that the
same matter should be considered as having been submitted to another
procedure of international settlement, since the complainant submitted his
complaint to the European Court of Human Rights. It adds that the
complainant decided to withdraw his case because no interim measures were
adopted, even though the complaint had not yet been formally registered.
4.2 The State party acknowledges that all domestic remedies have been
exhausted; it nevertheless maintains that the complaint should be declared
inadmissible on the basis of article 22, paragraph 5 (b), of the Convention,
since the complaint is not sufficiently substantiated.
4.3 Should the Committee declare the complaint to be admissible, the State
party asserts that, as regards the merits of the complaint, returning the
complainant to Colombia would not constitute a violation of article 3 of the
Convention. It points out that, according to the Committee's jurisprudence,
application of article 3 of the Convention must take account of (a) the
general human rights situation in the country, and (b) the danger personally
faced by the complainant of being subjected to torture in the country to
which he is returned.
4.4 The State party points out that it is aware of the general human rights
situation in Colombia, and considers that it is unnecessary to expand on it;
the State party therefore restricts itself to considering the complainant's
personal risk of being subjected to torture upon return to Colombia. It
affirms that the circumstances invoked by the complainant are not sufficient
evidence that he runs a foreseeable, real and personal risk of being
tortured in Colombia, and refers in this connection to the Committee's
jurisprudence on the interpretation of article 3 of the Convention. [FN5]
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[FN5] S.M.R. and M.M.R. v. Sweden, Communication No. 103/1998, Decision of
the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted on 5 May 1999, paras. 9.7 and 9.4; S.L. v. Sweden, Communication No.
150/1999, Decision of the Committee against Torture under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, adopted on 11 May 2001, para. 6.4.
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4.5 The State party adds that the complainant's credibility is of vital
importance in taking a decision on the application for asylum, and that the
national authorities conducting the interviews are naturally in an excellent
position to assess that credibility. The State party contends that the
common feature of the complainant's declarations to the Migration Board and
to the Aliens Appeals Board lies in the doubts they raised as to his
credibility. It stresses that the complainant applied for asylum several
days after the Sollotuna District Court had handed down a judgement against
him ordering his expulsion from Swedish territory, for having committed a
drug-trafficking offence. It adds that the complainant moreover did not give
his true identity, which was revealed later in the judicial investigations;
and that the result of all of this was that the migration authorities
attached no credibility to the complainant's assertions that he risked being
tortured if he were deported to Colombia.
4.6 In the State party's view, it is not logical for someone applying for
protection to put his relations with the new country at risk by committing
an offence; moreover, the offence was committed within three months of his
arrival in Sweden. The State party adds that the complainant was found
guilty by the judicial authorities, that according to the police
investigations he purchased the cocaine in Colombia before leaving the
country, and that his brother-in-law carried the drug to Sweden. In the view
of the State party, the foregoing does not reflect the behaviour of a
genuine asylum-seeker.
4.7 The State party contends that the complainant has provided no evidence
of his alleged political activities in Colombia. According to the
information furnished to it, the complainant was prosecuted for theft in
Colombia, while at no time did he give details to the Swedish migration
authorities concerning the alleged acts of torture to which he was
subjected, nor the times and places of his arrests. The State party asserts
that the medical reports were the only evidence he submitted, but that they
only mentioned the possibility that the complainant had been the victim of
torture.
4.8 In another written submission dated 8 July 2003, the State party informs
the Committee that it had received reports from the Colombian authorities
informing it that on his return the complainant was briefly detained for the
offence of "escaping from prison," and that he was also cited as a suspect
in the commission of several other offences of a non-political nature.
Comments by the Complainant Concerning the State Party's Arguments
5.1 In a written submission of 17 April 2003, the complainant's counsel
commented on the State party's observations. He asserts that he was unable
to obtain pertinent evidence of the complainant's political activities or of
the acts of torture to which he was subjected in Colombia. [FN6]
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[FN6] The complainant's counsel suggests at the end of his submission that
the complaint could be supplemented by further information, but has sent no
more material since that date.
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5.2 The complainant asserts that his wife, Mrs. Karin Berg, visited him
after he had been deported and imprisoned in Colombia. He also submits a
copy of a written statement to a Colombian judicial authority by Hector
Mosquera, who declared in 1994 that he had been subjected to torture. His
counsel asserts that this is the same person as the complainant. [FN7]
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[FN7] [The complainant has submitted a copy of a "wanted" announcement
issued by the authorities of a prison in Colombia, but the secretariat has
doubts as to its veracity.]
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5.3 The complainant says that he was deprived of his freedom on arrival at
Bogota Airport, and that on 30 July 1999, while he was in Sweden, he was
sentenced by the Third Criminal Circuit Court of Cartago to eight months'
imprisonment for the offence of "escaping from prison," this being evidence
that he was persecuted. He adds that he had travelled under another identity
because he was afraid of being arrested by the Colombian authorities, and
that he did not commit the offence for which he was tried and sentenced in
Sweden.
5.4 The complainant says that in accordance with Swedish legislation, if an
international organization makes a request for interim measures, the
execution of the measure of expulsion must be halted. He adds that his
counsel alerted the State party's authorities to the interim measures he had
requested from the Committee, and that the expulsion procedure is only
concluded when the alien is accepted by the authorities of the country to
which he is sent; consequently, the expulsion could have been suspended when
he stopped over in Madrid.
5.5 The complainant contends that when he was deported he was exposed to a
real and personal risk of torture in Colombia, and the fact that this did
not take place is due to the circumstances of the case, such as the
considerable assistance he received and the measures taken internationally
to draw the State party's attention to the case; [FN8] as a result he was
released within a relatively brief period, but the risk still exists and the
possibility that he may still be prosecuted should not be ruled out. He
maintains that he currently fears that paramilitary groups could capture and
torture or murder him.
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[FN8] On 24 July 2002, the Special Rapporteur on torture urgently called the
complainant's case to the attention of the Colombian Government.
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Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. In this respect the Committee notes the State party's
assertion that the complainant's complaint should be declared inadmissible,
since it has already been submitted to the European Court of Human Rights.
The Committee notes here that the complaint was withdrawn before it was
examined by that body. Consequently, the Committee considers that article
22, paragraph 5 (a), of the Convention is not an obstacle to examination of
the complaint.
6.2 The Committee also observes that the State party acknowledges that
domestic remedies have been exhausted; consequently, it sees no further
obstacles to the admissibility of the complaint. It therefore declares the
complaint admissible and proceeds to consideration of the merits.
7.1 The Committee has considered the complaint in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
7.2 The Committee must decide whether the deportation of the complainant to
Colombia constituted a violation of the State party's obligation under
article 3 of the Convention not to expel or return an individual to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
7.3 The Committee must assess whether there are grounds to believe that the
complainant of the complaint would be in personal danger of being subjected
to torture on returning to Colombia. In order to reach this conclusion, the
Committee must take into account all relevant considerations in accordance
with article 3, paragraph 2, of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights.
The Committee recalls, however, that the aim is to determine whether the
individual concerned would personally risk torture in the country to which
he or she would return. It follows that the existence of a consistent
pattern of gross, flagrant or mass violations of human rights in a country
does not as such constitute sufficient grounds for determining whether the
particular person would be in danger of being subjected to torture upon his
return to that country; additional grounds must be adduced to show that the
individual concerned would be personally at risk. Conversely, the absence of
a consistent pattern of gross violations of human rights does not mean that
a person may not be considered to be in danger of being subjected to torture
in his or her specific circumstances.
7.4 In the present case, the Committee notes the observations of the State
party to the effect that the complainant did not produce evidence of having
been involved in political activities in Colombia, and that he did not run a
real and personal risk of being subjected to torture, since it had also
received information from the Colombian authorities reporting that the
complainant had been briefly detained, and notes that there is no evidence
that he was tortured subsequent to his return to Colombia. The Committee
further observes that his counsel reports that the complainant is currently
on parole.
7.5 The Committee moreover notes the circumstances which gave rise to doubts
on the part of the State party's authorities concerning the need to grant
the complainant protection. It is aware that the complainant has not adduced
sufficient evidence to prove that he was subjected to torture in Colombia.
[FN9] Bearing in mind the foregoing, the Committee considers that the
information provided by the complainant does not provide substantial grounds
for believing that he was personally in danger of being tortured when
returned to Colombia.
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[FN9] [Note: medical certificates only.]
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8. 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 complainant of the complaint has
not substantiated his claim that he would be subjected to torture upon his
return to Colombia, and therefore concludes that the complainant's removal
to that country did not constitute a breach by the State party of article 3
of the Convention.
[Done in English, French, Russian and Spanish, the Spanish text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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