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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 6 May 2005,
Having concluded its consideration of complaint No. 226/2003, submitted to
the Committee against Torture by Ms. T. A. 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, her counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is Ms. T. A., a Bangladeshi citizen, who acts on behalf
of herself and her daughter S.T, born in 1996. Both are awaiting deportation
from Sweden to Bangladesh. Ms. T. A. complains that their expulsion to
Bangladesh would amount to a violation by Sweden of articles 3 and 16, and
possibly of article 2, of the Convention. She is represented by Ms. Gunnel
Stenberg.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the complaint to the State party on 20 January 2003.
Pursuant to rule 108, paragraph 1, of the Committee's rules of procedure,
the State party was requested not to expel the complainant and her daughter
to Bangladesh pending the consideration of her case by the Committee. On 11
March 2003, the State party informed the Committee that it would stay the
enforcement of the decision to expel the complainant and her daughter to
Bangladesh while the case was under consideration by the Committee.
The Facts as Submitted by the Complainant:
2.1 The complainant and her daughter arrived in Sweden on 13 October 2000 on
a tourist visa, to visit the complainant's sister residing in Sweden. They
applied for asylum on 9 November 2000. On 24 September 2001, the Migration
Board denied the application and ordered their expulsion. On 25 February
2002, the Aliens Appeals Board upheld the decision of the Migration Board.
Two new applications for a resident permit on humanitarian grounds were
subsequently denied by the Aliens Appeals Board. A third application was
submitted on 17 December 2002. However, on 19 December 2002, the Aliens
Appeals Board denied the application for a stay of execution of the
expulsion order. The complainant alleges that she has exhausted all domestic
remedies.
2.2 Before the Migration Board, the complainant stated that she became an
active member of the Jatiya Party in Bangladesh in 1994, and that her
husband had been active in the same party long before that. In 1996, she was
appointed women's secretary in the local women's association of the party in
Mirpur Thana, where the family lived. Her tasks were to inform people about
the work done by the party, to speak at meetings and to participate in
demonstrations. In 1999, after the split of the party, she and her husband
remained in the faction led by Ershad.
2.3 On 7 September 1999, the police arrested the complainant in connection
with a demonstration in which a grenade was thrown. She was mistreated and
suffered injury to her toenail. She was released the next day. On 23
November 1999, members of the Awami League mistreated both the complainant
and her husband. They accused him of the murder of one of the members of the
League, which occurred during a demonstration in which he had participated.
Around 21 January 2000 someone left a cut-off hand in front of their home.
On 10 April 2000, other members of the League vandalized their home while
asking about the whereabouts of her husband, who had by then gone into
hiding. She reported the case to the police, who refused to investigate the
complaint when it was made clear to them that the perpetrators belonged to
the Awami League.
2.4 On 16 August 2000, the police, accompanied by members of Awami League,
arrested the complainant and her daughter at her parents' home, where she
had moved. Her daughter, then 4 years old, was pushed so hard that she fell
and injured her forehead. The complainant was taken to the police station,
accused of illegal arm trading, and subjected to torture including rape, to
make her confess the crime. She was hit with a rifle belt, strung up upside
down until she started to bleed from her nose, stripped and burned with
cigarette butts. Water was poured into her nose. She then was raped and lost
consciousness. She was released the next day, after her father had paid a
bribe to the police. She was forced to sign a document by which she promised
not to take part in any political activity and not to leave her town or the
country. After her release, the complainant was treated at a private clinic
in Bangladesh. After her arrival in Sweden she has been in contact with her
relatives, who had informed her that the Bangladeshi police had continued to
search for her.
2.5 As evidence of her political activities, the complainant submitted to
the Migration Board a receipt for the payment of the membership fee for the
party and a certificate from the Jatiya Party, which stated that she joined
the party in 1994, and was elected Joint Secretary in January 1996. She also
submitted a medical report from a hospital in Bangladesh, dated 17 August
2000, which confirmed that she was physically assaulted and raped. The
report stated that there were several cigarette burns over her right thigh
and hand, bruises over her wrist, a small incised wound on her right finger,
a bluish mark over the back, and bleeding through her vagina and over the
vulva. She also submitted a medical certificate, issued by a psychologist on
22 May 2001, which stated that her mental condition had worsened, that she
had insomnia, nausea, vomiting, cold sweat, difficulties in concentrating
and talking, feebleness, and strong memories of the rape. Another
certificate, issued by a Swedish psychologist on 7 September 2001, showed
that she had developed a post-traumatic stress disorder syndrome accompanied
by nightmares, flashbacks and severe corporal symptoms. The same certificate
stated that her daughter suffered from constipation, lacked appetite, and
had difficulties to sleep. The child suffered from a special trauma as a
consequence of being waiting for a decision about grant of residence
permits.
2.6 The complainant points out that the Migration Board did not dispute that
she had been tortured and raped. However, the Board concluded that these
acts could not be considered to be attributable to the State of Bangladesh
but had to be regarded as the result of the actions of individual policemen.
The Board also stated that the Jatiya Party was in alliance with the
Bangladesh National Party (hereinafter referred to as BNP), currently in
government.
2.7 Before the Aliens Appeals Board, the complainant contested the findings
of the Migration Board. She denied that the Ershad fraction of the Jatiya
Party was allied to the BNP, and pointed out that, at the time of the
appeal, the leader of her faction, Mr. Ershad, had left Bangladesh.
Regarding the acts of torture and rape, she alleged that the police was part
of the State of Bangladesh, that it was futile to complain against the
police because the institution never investigated such complaints, and that
the situation of the victim usually worsened if he or she decided to
complain. She invoked reports of the U.S Department of State and Amnesty
International according to which torture was frequent and a matter of
routine in Bangladesh. She also submitted three certificates dated 20 and 22
November 2001, and 22 February 2002, respectively, showing that the
post-traumatic stress syndrome had grown worse and that there was a serious
risk of suicide. One certificate showed that her daughter had nightmares and
flashbacks of the incident in which their home was vandalized in Bangladesh,
and that her emotional development had been impaired as a result.
2.8 By its decision of 25 February 2002, the Aliens Appeals Board considered
that torture and rape were not attributable to the State but to the isolated
action of some policemen, that the complainant had been working for a legal
party and had been a common member without noticeable influence, ant that
because of the political change in Bangladesh there were no reasonable
grounds for believing that she would be subjected to arrest and torture by
the police if returned to her country.
2.9 As attachments to the new applications for a resident permit on
humanitarian grounds, filed on 20 May and 1 July 2002, the complainant
submitted additional medical evidence on her declining mental health and
that of her daughter. The medical certificates, dated 19 and 22 April 2002,
and 7 May 2002, showed that the complainant's mental health deteriorated
after the decision of the Aliens Board. She suffered from a dissociate state
of mind, experienced a feeling of being present in the trauma she had been
subjected to. She displayed increasing suicidal tendencies. Her daughter
showed symptoms of serious traumatisation. On 26 May 2002, the complainant
tried to commit suicide, and was admitted to the psychiatric ward of St.
Goran's Hospital in Stockholm on the same day, for compulsory psychiatric
treatment. On 26 March 2002, a psychiatrist certified that she suffered from
a serious mental disturbance possibly from psychosis. The compulsory
psychiatric treatment was based on the risk of suicide. According to another
expert, the complainant's mental health further deteriorated after her
release from hospital on 6 August 2002. She could no longer care for her
daughter, who had been placed with another family. The expert suggested,
however, that she be placed on ambulatory treatment, because while in
hospital the complainant's mental health had worsened. As regard to the
complainant's daughter, the medical certificate stated that she had fallen
into a serious and threatening state and that she would need a long period
of psychotherapeutic treatment.
2.10 The Aliens Appeals Board denied the new applications on the basis that
the evidence presented, as well as an assessment of the personal situation
of the complainant as a whole, were insufficient to justify the issuance of
residence permits. Regarding the complainant's daughter, the Board concluded
that she had a network in Bangladesh consisting of her father, her maternal
great parents and her mother's siblings, that the complainant and her
daughter had been in Sweden only for two years, and that it was for the best
interest of the child to return to a well-known environment and that her
need for treatment would be best satisfied in such environment.
2.11 On 17 December 2002, a new application for humanitarian residence
permits was filed. The new evidence consisted of reports from experts who
had been in contact with the complainant and her daughter, as well as a
report from the family unit of the social security authority in Rinkeby to
Bromstergarden, an institution entrusted with the task of evaluating the
needs of the child, the ability of the mother to take care of the child, and
to focus on the questions of reuniting the mother and the child and to
conduct supporting meetings. According to this evidence, the complainant's
mental health was so bad that she could no longer connect with her daughter.
This state of alienation not only had prevented her from giving her daughter
the support she needed but also had seriously threatened her daughter's
mental balance. Furthermore, one report concluded that the complainant had
decided to take her own life and that of her daughter if she were forced to
return to Bangladesh. Both the complainant and her daughter were in need of
a continuous psychotherapeutic contact.
The Complaint:
3.1 The complainant contends that there are substantial grounds for
believing that she would be subjected to torture if forced to return to
Bangladesh. She contends that the criteria established in article 3 of the
Convention have been fulfilled. Neither the Migration Board nor the Aliens
Appeals Board in any way questioned her statements about her political
activities, the arrests by the police, the fact that these arrests were
motivated by her political activities, the torture and the rape, or her
information that the police have continued to look for her after she left
Bangladesh. She maintains that she risks the same treatment if returned to
Bangladesh.
3.2 She contends that, considering the medical evidence in her case, the
execution of the deportation order would in itself constitute a violation of
article 16 of the Convention, and perhaps also of article 2 of the
Convention, in view of her and her daughter's fragile psychiatric condition
and severe post-traumatic stress disorder, which is the result of the
persecution and torture to which she was subjected.
3.3 The complainant alleges that the description of torture she suffered
coincides with what is generally known about torture by the police in
Bangladesh. She invokes various reports from governments and international
NGOs. According to these reports, torture practiced by the police against
political opponents is not only allowed by the Executive, but is also often
instigated and supported by it. Moreover, domestic courts are not
independent and the decisions of the higher courts are often ignored by the
executive.
3.4 The complainant challenges the Aliens Appeals Board's finding, that
because of the changed situation in Bangladesh after the elections of
October 2001, she is no longer exposed to the risk of torture if returned.
She argues that these elections did not constitute such a fundamental change
in the political circumstances in Bangladesh that the grounds for
persecution could be considered no longer to exist. The change of government
did not in itself mean that people who had been subjected to false
accusations or charges on account of their political activities would be
acquitted of these accusations. They still risked arrest by the police and
subsequent ill-treatment and torture.
State Party's Submissions on the Admissibility and the Merits of the
Complaint:
4.1 On 2 April 2003, the State party submitted its observations on the
admissibility and the merits of the complaint. It acknowledges that all
domestic remedies are exhausted, but contends that the communication is
inadmissible since the complainant's claim that she is at risk of treatment
in violation of article 3 of the Convention in the event of return to
Bangladesh lacks the minimum substantiation that would render the
communication compatible with article 22 of the Covenant.
4.2 The State party also challenges the claim that the execution of the
deportation order would, in itself, constitute a violation of articles 2 or
16 of the Convention in view of the complainant and her daughter's fragile
psychiatric condition. The enforcement of the expulsion order cannot be
considered an act of torture within the meaning of article 1 of the
Convention and article 2 only applies to acts tantamount to torture within
the meaning of article 1. Therefore, article 2 is not applicable in the
context of the present case. Article 16 protects persons who are deprived of
their liberty or who are otherwise under the factual power or control of the
person responsible for the treatment or punishment, and the complainant can
hardly be considered as a victim in that sense. The communication is
therefore considered inadmissible in accordance with article 22, paragraph
2, of the Convention.
4.3 On the merits, and with regard to the alleged violation of article 3 of
the Convention, the State party indicates that although the general
situation of human rights in Bangladesh is problematic, improvements have
taken place during the last few years. Bangladesh has been a parliamentary
democracy since 1991. Under the first government of the BNP during
1991-1996, increasing efforts were made to protect human rights. In 1996 a
new government led by the Awami League came to power in elections generally
declared free and fair by observers. The BNP returned to power after
elections on 1 October 2001. Although violence is a pervasive element in the
country's politics and supporters of different political parties frequently
clash with each other and with police during rallies and demonstrations, a
wide variety of human rights groups are generally permitted to conduct their
activities in the country. The police reportedly use torture and
ill-treatment during interrogation of suspects and rape of women detainees
in prisons or police custody has been a problem. However, there were no
reports of such occurrences during 2001. The police are said to be often
reluctant to pursue investigations against persons affiliated with the
ruling party. The higher levels of the judiciary, however, display a
significant degree of independence and often rule against the government in
criminal, civil and even politically controversial cases. The Aliens Appeals
Board made a study tour to Bangladesh in October 2002. According to its
classified report, there is no institutionalized persecution in Bangladesh
and persecution for political reasons is of rare occurrence at the
grass-roots level. The State party further adds that Bangladesh is a party
to the Convention and since 2001 to the International Covenant on Civil and
Political Rights.
4.4 The State party recalls that its authorities apply the same criteria set
out in article 3 of the Convention to every asylum seeker. In the
complainant's case, the Migration Board took its decision after conducting
two comprehensive interviews with the complainant. The State party considers
that great weight must be attached to the opinions of the Swedish
immigration authorities. It contends that the complainant's return to
Bangladesh would not be in violation of article 3 of the Convention.
4.5 The State party considers that, even if it is considered established by
medical certificates that the complainant was subjected to torture in the
past, it does not mean that she has substantiated her claim that she will
risk being tortured in the future if return to Bangladesh. She claims that
she risks torture as a consequence of her membership in the Jatiya Party and
because she is still wanted by the police. However, in the elections of
October 2001 the Jatiya Party won 14 seats in Parliament. The former ruling
party and the complainant's persecutor, the Awami League, lost power. Since
the Awami League is no longer in government, there is no reason for the
complainant to fear persecution from the police. Furthermore, she has not
been in any leading position in the Jatiya Party. The complainant has not
produced any evidence in support of her assertion that she is still wanted
by the police or that she would still be in danger of persecution or torture
if returned to Bangladesh.
4.6 The State party contends that even if there is still a risk of
persecution from the Awami League, this is a non-governmental entity and its
acts cannot be attributed to the Bangladeshi authorities. According to the
Committee's jurisprudence such persecutions fall outside the scope of
article 3 of the Convention. In addition, such persecution would be
localized and the complainant could therefore improve her safety by moving
within the country.
4.7 The State party also points out that the complainant was allegedly
released by the police on 17 August 2000, and that she apparently made no
effort to leave the country then. She was granted a visa on 22 August 2000.
Even though she claims that she was hiding and wanted by the police, she
could visit the Swedish Embassy in Dhaka on 28 August 2000, to have an entry
visa stamped in her passport. These facts indicate that she might not have
been in danger of being arrested even then. Moreover, although she claims
having been forced to go into hiding in April 2000, she had no difficult in
obtaining a passport for herself and her daughter in May 2000. Furthermore,
she did not apply for asylum until almost two months after her arrival in
Sweden. It is unlikely that a genuine asylum-seeker would wait for almost
two months before approaching the Swedish authorities. Additionally, she has
stated that her husband had been in hiding since January or April 2000, due
to the persecution of the Awami League, and that she had not been able to
contact him since then. Nevertheless, when she applied for a visa she gave
the same address for her husband and for herself.
4.8 The State party concludes that the complainant neither produced
sufficient evidence, nor do the circumstances invoked by her suffice to show
that the alleged risk of torture fulfils the requirement of being
foreseeable, real and personal. The State party, in response to a request
for additional information from the Committee regarding the complainant's
political activities and the status and activities of the complainant's
husband, has informed the Committee that it does not have any knowledge and
that it is not in a position to provide any information on this.
4.9 With regard to the alleged violation of articles 2 and 16, the State
party maintains that the enforcement of the expulsion order cannot be
considered an act of torture even if the complainant suffers from
psychiatric problems and that she cannot be considered a victim of neither
torture within the meaning of article 2, nor cruel, inhuman or degrading
treatment within the meaning of article 16. Furthermore, the State party
recalls the Committee's jurisprudence on article 16, according to which, the
aggravation of the author's state of health possibly caused by his or her
deportation would not amount to the type of cruel, inhuman or degrading
treatment envisaged by article 16 of the Convention. The State party states
that only if very exceptional circumstances exist and when compelling
humanitarian considerations are at stake, the enforcement of an expulsion
decision may entail a violation of article 16. Medical evidence presented by
the author indicate that she suffers from severe Post Traumatic Stress
Disorder, and that her health condition has deteriorated as a result of the
decisions to refuse her entry into Sweden and to expel her to Bangladesh.
However, no substantial evidence has been submitted in support of her fear
of returning to Bangladesh. In addition, her husband, parents and several
others members of her family are in Bangladesh, and could support and help
her. Furthermore, the migration authorities have not used any coercive
measures against her or her daughter.
Complainant's Comments on State Party's Submissions on the Admissibility and
the Merits of the Communication:
5.1 As to the admissibility of the communication, the complainant maintains
that the evidence submitted fulfill the minimum standard of substantiation
that it is required in order to make the communication compatible with
article 22 of the Convention. She alleges that the State party has not
contended these facts.
5.2 The complainant maintains that the execution of the order of expulsion
should be deemed to constitute at least cruel, inhuman or degrading
treatment on the part of Swedish authorities. She contends that the evidence
submitted to the Committee clearly shows that the execution of the order
would constitute such treatment at least in the case of her daughter. The
social security authorities in Sweden could not find such an execution to be
at all in the best interests of the child. She also stresses the fact that
she and her daughter are under the factual control of the Swedish
authorities.
5.3 As to the merits of the communication, the complainant maintains that
the situation of human rights in Bangladesh is far worse than that described
by the Government. Furthermore, the Migration Board, in making its
assessment, did not have access to the medical evidence presented later in
domestic proceedings. Its findings can therefore be considered to have
rested on insufficient evidence.
5.4 The complainant contests the State party's allegation according to which
as Awami League no longer is in power in Bangladesh, it does not seem to be
any reason for her to fear persecution by the police. She alleges that she
belongs to a fraction of the Jatiya Party (Ershad) which is still to a large
extent in opposition to the present government of Bangladesh. According to
unanimous reports from several sources, torture by the police is routine,
widespread and carried out with total impunity. According to a recent report
of Amnesty International torture has been for many years the most widespread
human rights violation in Bangladesh, the opposition politicians are among
those who are subjected to torture, the BNP blocks judicial processes
against torture, and impunity for perpetrators is general. She alleges that
no fundamental changes have taken place in Bangladesh: those who work for
the Ershad fraction of the Jatiya Party are still in opposition to the
present government; political opponents, whether or not they work at a
high-up level or more on a grass-root basis, are subjected to arrests by the
police and to torture. In 2002 , 732 women were raped, 106 of whom were
killed after rape, 104 people were killed in police custody, and 83 died
after torture.
5.5 The complainant clarifies that her and her daughter's passports were
issued on 14 May 2000 and that they applied for a visa at the Swedish
Embassy in Dhaka on 25 June 2000, in order to visit the complainant's
sister. These events took place prior to her arrest of 16 August 2000. After
her release on 17 August 2000 she was first committed to a clinic because of
her injuries, where she got notice of the visa having been issued. Since she
was still ill it took her sometime to get everything into order for the
departure. She explains that she did not apply for asylum immediately upon
her arrival in Sweden because she was still not feeling very well after the
torture. She decided to apply for asylum when she learned that the
Bangladeshi police was still looking for her. She also states that she gave
the same address for her husband in the passport for practical reasons, to
avoid being questioned by the Embassy personnel and because is common in
Bangladesh for a wife to do that. The complainant's sister visited
Bangladesh from December 2002 to February 2003, where she learned that the
police was still looking for T.A.
5.6 The complainant notes that the authorities of the State party should
take into particular consideration how its treatment may affect a child and
also whether a treatment which might not constitute inhuman or degrading
treatment when inflicted on an adult may nevertheless constitute such
treatment when it is inflicted on a child.
5.7 The complainant , in response to a request for additional information
from the Committee regarding the complainant's political activities and the
status and activities of the complainant's husband, has informed the
Committee that she has not been able to be politically active in Sweden,
because the Jatiya Party does not any longer have any active organization
there. Nor has she been able to be active in Bangladesh. However,
Bangladeshi authorities are still interested in her. The complainant has
been in contact with her parents. They have told her that four policemen in
civilian clothes came to their home in September 2004, asking about her
whereabouts and that of her husband. When they received a negative answer
from Ms. T. A.'s relatives, they searched their home looking for them. Ms.
T. A.'s parents have also stated that the police search Ms. T. A. at regular
intervals.
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. 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 further notes that
domestic remedies have been exhausted, as acknowledged by the State party,
and that the complainant has sufficiently elaborated the facts and the basis
of the claim for the purposes of admissibility. Accordingly, the Committee
considers the complaint admissible and proceeds to its consideration of the
merits.
7.1 The first issue before the Committee is whether the removal of the
complainant to Bangladesh would violate the State party's obligation 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 or she would
be in danger of being subjected to torture.
7.2 The Committee must evaluate whether there are substantial grounds for
believing that the complainant would be personally in danger of being
subjected to torture upon return to Bangladesh. In assessing the risk, the
Committee must take into account all relevant considerations, pursuant to
article 3, paragraph 2, of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights.
However, the Committee recalls that the aim of such determination is to
establish whether the individual concerned would be personally at risk of
being subjected to torture in the country to which he would return. It
follows that the existence of a consistent pattern of gross, flagrant or
mass violations of human rights on 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 that country;
additional grounds must exist to show 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.
7.3 The Committee has noted the State party's contention that since the
Awami League is currently in political opposition, the risk for the
complainant to be exposed to harassment by the authorities at the
instigation of members of the party no longer exists. The State party
further argues that the complainant does not have anything to fear from the
political parties now in power, since she is a member of one of the parties
represented in Congress. However, the State party has not contested that the
complainant had in the past been persecuted, detained, raped and tortured.
The Committee notes the complainant's statement that she belongs to a
faction of the Jatiya Party which is in opposition to the ruling party, and
that torture of political opponents is frequently practiced by state agents.
Furthermore, the acts of torture to which the author was subjected to,
appear not only to have been inflicted as a punishment for her involvement
in political activities, but also as a retaliation for the political
activities of her husband and his presumed involvement in a political crime.
The Committee also notes that her husband is still in hiding, that the
torture to which she was subjected occurred in a recent past and has been
medically certified, and that the complainant is still being searched by the
police in Bangladesh.
7.4 In the circumstances, the Committee considers that substantial grounds
exist for believing that Ms T. A. may risk being subjected to torture if
returned to Bangladesh. Having concluded this, the Committee does not need
to examine the other claims raised by the complainant.
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, concludes that, given the specific circumstances of
the case, the deportation of the complainant and her daughter would amount
to a breach of article 3 of the Convention.
9. The Committee urges the State party, in accordance with rule 112,
paragraph 5, of its rules of procedure, to inform it, within 90 days from
the date of the transmittal of this decision, of the steps taken in response
to the decision expressed above.
[Adopted in English, French, Russian and Spanish, the English 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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