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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 17 May 2005,
Having concluded its consideration of complaint No. 195/2002, submitted to
the Committee against Torture by Mr. Mafhoud Brada 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, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant, Mr. Mafhoud Brada, a citizen of Algeria, was residing
in France when the present complaint was submitted. He was the subject of a
deportation order to his country of origin. He claims that his forced
repatriation to Algeria constitutes a violation by France of article 3 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. He is represented by Action of Christians for the
Abolition of Torture, a non-governmental organization.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the State party's attention by note
verbale dated 19 December 2001. At the same time, the Committee, acting in
accordance with rule 108, paragraph 9, of its rules of procedure, requested
the State party not to deport the complainant to Algeria while his complaint
was being considered. The Committee reiterated its request in a note verbale
dated 26 September 2002.
1.3 In a letter dated 21 October 2002 from the complainant's counsel, the
Committee was informed that the complainant had been deported to Algeria on
30 September 2002 on a flight to Algiers and that he had been missing since
his arrival in Algeria.
The Facts as Submitted by the Complainant
2.1 The complainant, a fighter pilot since 1993, was a member of the
Algerian air force squadron based in Bechar, Algeria. From 1994 on, the
squadron was regularly used, as a back-up for helicopter operations, to bomb
Islamist maquis areas in the region of Sidi Bel Abbes. The fighter aircraft
were equipped with incendiary bombs. The complainant and other pilots were
aware that the use of such weapons was prohibited. After seeing the
destruction caused by these weapons on the ground in photographs taken by
military intelligence officers - pictures of dead men, women, children and
animals - some pilots began to doubt the legitimacy of such operations.
2.2 In April 1994, the complainant and another pilot declared, during a
briefing, that they would not participate in bombing operations against the
civilian population, in spite of the risk of heavy criminal sanctions
against them. A senior officer then waved his gun at the complainant's
colleague, making it clear to him that refusal to carry out missions "meant
death". When the two pilots persisted in their refusal to obey orders, the
same officer loaded his gun and pointed it at the complainant's colleague,
who was mortally wounded as he tried to escape through a window. The
complainant, also wishing to escape, jumped out of another window and broke
his ankle. He was arrested and taken to the interrogation centre of the
regional security department in Bechar third military region. The
complainant was detained for three months, regularly questioned about his
links with the Islamists and frequently tortured by means of beatings and
burning of his genitals.
2.3 The complainant was finally released owing to a lack of evidence of
sympathy with the Islamists and in the light of positive reports concerning
his service in the forces. He was forbidden to fly and assigned to Bechar
airbase. Explaining that servicemen who were suspected of being linked to or
sympathizing with the Islamists regularly "disappeared" or were murdered, he
escaped from the base and took refuge in Ain Defla, where his family lived.
The complainant also alleges that he received threatening letters from
Islamist groups, demanding that he desert or risk execution. He forwarded
the threatening letters to the police.
2.4 Later, when the complainant was helping a friend wash his car, a vehicle
stopped alongside them and a submachine gun burst was fired in their
direction. The complainant's friend was killed on the spot; the complainant
survived because he was inside the car. The village police officer then
advised the complainant to leave immediately. On 25 November 1994, the
complainant succeeded in fleeing his country. He arrived at Marseille and
met one of his brothers in Orl�ans (Indre). In August 1995, the complainant
made a request for asylum, which was later denied by the French Office for
the Protection of Refugees and Stateless Persons (OFPRA). Since the
complainant had made the request without the assistance of counsel, he was
unable to appeal the decision to the Refugee Appeals Commission.
2.5 The complainant adds that, since he left Algeria, his two brothers have
been arrested and tortured. One died in police custody. Moreover, since his
desertion, two telegrams from the Ministry of Defence have arrived at the
complainant's home in Abadia, demanding that he report immediately to air
force headquarters in Cheraga in connection with a "matter concerning him".
In 1998, the complainant was sentenced in France to eight years'
imprisonment for a rape committed in 1995. The sentence was accompanied by a
10-year temporary ban from French territory. As the result of a remission of
sentence, the complainant was released on 29 August 2001.
2.6 Meanwhile, on 23 May 2001, the prefect of Indre issued an order for the
deportation of the complainant. In a decision taken on the same day, he
determined that Algeria would be the country of destination. On 12 July
2001, the complainant lodged an appeal with the Limoges Administrative Court
against the deportation order and the decision to return him to his country
of origin. In an order dated 29 August 2001, the court's interim relief
judge suspended enforcement of the decision on the country of return,
considering that the risks to the complainant's safety involved in a return
to Algeria raised serious doubts as to the legality of the deportation
decision. Nevertheless, in a judgement dated 8 November 2001, the
Administrative Court rejected the appeal against the order and the
designated country of return.
2.7 On 4 January 2002, the complainant appealed against this judgement to
the Bordeaux Administrative Court of Appeal. He points out that such an
appeal does not have suspensive effect. He also refers to recent case law of
the Council of State which he maintains demonstrates the inefficacy of
domestic remedies in two similar cases. [FN1] In those cases, which involved
deportation to Algeria, the Council of State dismissed the risks faced by
the persons concerned, but the Algerian authorities subsequently unearthed a
death sentence passed in absentia. On 30 September 2002, the complainant was
deported to Algeria on a flight to Algiers and has been missing since.
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[FN1]The complainant refers to the Chalabi and Hamani cases.
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The Complaint
3.1 The complainant considers that his deportation to Algeria is a violation
by France of article 3 of the Convention insofar as there are real risks of
his being subjected to torture in his country of origin for the reasons
mentioned above.
3.2 The complainant, supported by medical certificates, also maintains that
he suffers from a serious neuropsychiatric disorder that requires constant
treatment, the interruption of which would adversely affect his health. His
doctors have considered these symptoms to be compatible with his allegations
of torture. Moreover, the complainant's body shows traces of torture.
The State Party's Observations on the Admissibility of the Complaint
4.1 In a note verbale dated 28 February 2002, the State party challenged the
admissibility of the complaint.
4.2 As its main argument, the State claimed that the complainant had not
exhausted domestic remedies within the meaning of article 22, paragraph 5,
of the Convention. On the date that the complaint was submitted to the
Committee, the appeal to the Bordeaux Administrative Court of Appeal against
the judgement upholding the order to deport the complainant was still
pending. Moreover, there were no grounds for concluding that the procedure
might exceed a reasonable time.
4.3 With regard to the complainant's argument that such an appeal did not
suspend the deportation order, the State party maintained that the
complainant had the option of applying to the interim relief judge of the
Administrative Court of Appeal for suspension of the order. Indeed, the
complainant had successfully made such an appeal to the Limoges
Administrative Court.
4.4 Secondly, the State party maintained that the complaint submitted to the
Committee was not in keeping with the provision of rule 107, paragraph 1
(b), of the rules of procedure that "the communication should be submitted
by the individual himself or by his relatives or designated representatives
or by others on behalf of an alleged victim when it appears that the victim
is unable to submit the communication himself, and the author of the
communication justifies his acting on the victim's behalf". However, the
procedural documents did not indicate that the complainant designated Action
of Christians for the Abolition of Torture as his representative, and it had
not been established that the complainant is unable to instruct that
organization to act on his behalf. It therefore had to be ascertained
whether or not the purported representative, who signed the complaint, was
duly authorized to act on the complainant's behalf.
Comments by Counsel
5.1 In a letter dated 21 October 2002, counsel set out her comments on the
State party's comments as to admissibility.
5.2 In relation to the exhaustion of domestic remedies, counsel pointed out
that, in accordance with the general principles of international law, the
domestic remedies which must be exhausted are those which are effective,
adequate or sufficient, in other words, which offer a serious chance of
providing an effective remedy for the alleged violation. In this case, the
annulment proceedings instituted before the Bordeaux Administrative Court of
Appeal were still pending. Since that procedure had no suspensive effect,
the deportation order against the complainant was enforced on 30 September
2002. Domestic remedies thus proved ineffective and inadequate.
5.3 Moreover, since the complainant was under the protection of the
Committee by virtue of its request to the State party not to send him back
to Algeria while his application was being considered, he had not considered
it worthwhile to launch additional domestic proceedings, in particular
interim relief proceedings for suspension.
5.4 In any event, the enforcement of the deportation order despite the
pertinent arguments raised in the proceedings before the Bordeaux
Administrative Court of Appeal rendered the appeal ineffective. Even if the
Court were now to grant the complainant's appeal, it was unrealistic to
imagine that Algeria would return him to France.
5.5 In response to the complaint that rule 107, paragraph 1, of the
Committee's rules of procedure had not been respected, counsel referred to a
statement signed by the complainant in person on 29 November 2001
authorizing the Action of Christians for the Abolition of Torture to act on
his behalf before the Committee.
The Committee's Assessment in Its Decision on Admissibility of the Failure
by the State Party to Accede to Its Request for Interim Measures Pursuant to
Rule 108 of Its Rules of Procedure
6.1 The Committee observed that any State party which made the declaration
provided for under article 22 of the Convention recognized the competence of
the Committee against Torture to receive and consider complaints from
individuals who claimed to be victims of violations of one of the provisions
of the Convention. By making this declaration, States parties implicitly
undertook to cooperate with the Committee in good faith by providing it with
the means to examine the complaints submitted to it and, after such
examination, to communicate its comments to the State party and the
complainant. By failing to respect the request for interim measures made to
it, the State party seriously failed in its obligations under article 22 of
the Convention because it prevented the Committee from fully examining a
complaint relating to a violation of the Convention, rendering action by the
Committee futile and its comments worthless.
6.2 The Committee concluded that the adoption of interim measures pursuant
to rule 108 of the rules of procedure, in accordance with article 22 of the
Convention, was vital to the role entrusted to the Committee under that
article. Failure to respect that provision, in particular through such
irreparable action as deporting an alleged victim, undermined protection of
the rights enshrined in the Convention.
Decision of the Committee Concerning Admissibility
7.1 The Committee considered the admissibility of the complaint at its
thirtieth session and declared the complaint admissible in a decision of 29
April 2003.
7.2 Concerning the locus standi of Action of Christians for the Abolition of
Torture, the Committee noted that the statement signed by the complainant on
29 November 2001 authorizing the organization to act on his behalf before
the Committee was in the file submitted to it, and therefore considered that
the complaint complied with the conditions set out in rules 98.2 and 107.1
of its rules of procedure.
7.3 On the exhaustion of domestic remedies, the Committee noted that on 2
January 2002 the complainant had appealed to the Bordeaux Administrative
Court of Appeal against the ruling of the Limoges Administrative Court
upholding the deportation order, and that that appeal had no suspensive
effect. Concerning the State party's argument that the complainant had had,
but did not pursue, the option of applying to the interim relief judge of
the Bordeaux court to suspend enforcement of the deportation order, the
Committee noted that the State party had not indicated that the complainant
should make such application by a specific deadline, implying that the
application could in theory have been made at any time up to the moment when
the Administrative Court of Appeal ruled on the merits of the appeal.
7.4 The Committee also noted that the complaint did not constitute an abuse
of the right to submit a communication and was not incompatible with the
Convention.
7.5 The Committee also noted that on 30 September 2002, after communicating
its comments on the admissibility of the complaint, the State party had
enforced the order for the deportation of the complainant to Algeria.
7.6 In the circumstances, the Committee considered it ought to decide
whether domestic remedies had been exhausted when examining the
admissibility of the complaint. In its view it was unarguable that, since
the deportation order had been enforced before the Administrative Court of
Appeal reached a decision on the appeal, the complainant had, from the
moment he was deported to Algeria, had no opportunity to pursue the option
of applying for suspension.
7.7 The Committee noted that, when it called for interim measures of
protection such as those that would prevent the complainant from being
deported to Algeria, it did so because it considered that there was a risk
of irreparable harm. In such cases, a remedy which remains pending after the
action which interim measures are intended to prevent has taken place is, by
definition, pointless because the irreparable harm cannot be averted if the
domestic remedy subsequently yields a decision favourable to the
complainant: there is no longer any effective remedy to exhaust after the
action which interim measures were intended to prevent has taken place. In
the present case, the Committee felt no appropriate remedy was available to
the complainant now he had been deported to Algeria, even if the domestic
courts in the State party were to rule in his favour at the conclusion of
proceedings which were still under way after the extradition.
7.8 In the present case, according to the Committee, the essential purpose
of the appeal was to prevent the deportation of the complainant to Algeria.
In this specific case, enforcing the deportation order rendered the appeal
irrelevant by vitiating its intended effect: it was inconceivable that, if
the appeal went in the complainant's favour, he would be repatriated to
France. In the circumstances, in the Committee's view, the appeal was so
intrinsically linked to the purpose of preventing deportation, and hence to
the suspension of the deportation order, that it could not be considered an
effective remedy if the deportation order was enforced before the appeal
concluded.
7.9 To this extent, the Committee was of the view that returning the
complainant to Algeria despite the request made to the State party under
rule 108 of the rules of procedure, and before the admissibility of the
complaint had been considered, made the remedies available to the
complainant in France pointless, and the complaint was accordingly
admissible under article 22, paragraph 5, of the Convention.
The State Party's Submission on Interim Measures of Protection and the
Merits of the Complaint
8.1 The State party submitted its observations on 26 September and 21
October 2003.
8.2 Regarding interim measures (paras. 6.1 and 6.2) and the Committee's
repeated view that "failure to respect a call for interim measures pursuant
to rule 108 of the rules of procedure, in particular through such an
irreparable action as deporting the complainant, undermines protection of
the rights enshrined in the Convention", the State party registers its firm
opposition to such an interpretation. According to the State party, article
22 of the Convention gives the Committee no authority to take steps binding
on States parties, either in the consideration of the complaints submitted
to it or even in the present case, since paragraph 7 of the article states
only that "The Committee shall forward its views to the State party
concerned and to the individual". Only the Committee's rules of procedure,
which cannot of themselves impose obligations on States parties, make
provision for such interim measures. The mere failure to comply with a
request from the Committee thus cannot, whatever the circumstances, be
regarded as "undermining protection of the rights enshrined in the
Convention" or "rendering action by the Committee futile". The State party
explains that when receiving a request for interim measures, cooperating in
good faith with the Committee requires it only to consider the request very
carefully and try to comply with it as far as possible. It points out that
until now it has always complied with requests for interim measures, but
that should not be construed as fulfilment of a legal obligation.
8.3 Concerning the merits of the complaint and the reasons for the
deportation, the State party considers the complaint to be unfounded for the
following reasons. First, the complainant never established, either in
domestic proceedings or in support of his complaint, that he was in serious
danger within the meaning of article 3 of the Convention. The State party
refers to the Committee's case law whereby it is the responsibility of an
individual who claims he would be in danger if sent back to a specific
country to show, at least beyond reasonable doubt, that his fears are
serious. The Committee has also stressed that "for article 3 of the
Convention to apply, the individual concerned must face a foreseeable and
real risk of being subjected to torture in the country to which he/she is
being returned, and that this danger must be personal and present" [FN2] and
that invoking a general situation or certain specific cases is not
sufficient. According to the State party, while the complainant describes
himself as a fighter pilot and an officer of the Algerian armed forces who
has deserted for humanitarian reasons, he provides no proof. To establish
that he is a deserter he has merely presented the Committee with two
telegrams from the Algerian air force addressed to his family home; both are
extremely succinct and merely request him "to present himself to the air
force authorities in B�char for a matter concerning him", without further
details or any mention of his rank or former rank. In the State party's view
it is very difficult to believe that the complainant was unable to produce
any other document to substantiate the fears he expressed.
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[FN2] U.S. v Finland, Complaint No. 197/2002, Views adopted on 1 May 2003.
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8.4 Secondly, even if the complainant did establish that he was a fighter
pilot and a deserter, his account contains various contradictions and
implausibilities that discredit the fears invoked. In particular, he
maintains that in early March, when along with another pilot he refused to
participate in bombing operations against the civilian population, he knew
that he risked heavy penalties by refusing to obey orders; he points out
that such penalties were more severe for officers and, given the situation
in Algeria, would have been handed down in time of war and included the
death penalty for officers. While the other pilot had been shot on the spot
for disobeying orders, the complainant had apparently been released after
only three months in prison for the same conduct, his only punishment, once
he had been cleared of suspected Islamist sympathies, being that he was
forbidden to fly and assigned to the airbase. When he deserted from the
airbase and fled to his family's village, an attempt was supposedly made to
kill the complainant with a submachine gun fired from an intelligence
vehicle: his neighbour was killed on the spot while he himself - the sole
target - escaped once again.
8.5 The State party considers that the complainant's personal conduct
renders his claims implausible. While he claims to have deserted in 1994 on
humanitarian grounds as a conscientious objector, consciously exposing
himself to the risk of very severe punishment, his humanitarian concerns
seem totally at odds with his violent criminal conduct on arrival in France
and subsequently. Scarcely a year after supposedly deserting on grounds of
conscientious objection, the complainant perpetrated a common crime of
particular gravity, namely, aggravated rape under threat of a weapon, and
while in prison for that crime showed he was a continuing danger to society
by making two violent attempts to escape.
8.6 In any case, the State party maintains that the complainant's alleged
fears cannot be held to represent a serious danger of torture and inhuman or
degrading treatment within the meaning of article 3 of the Convention. The
complainant maintained that he faced two kinds of danger in the event of
being sent back to Algeria: one, the result of his deserting, consisting in
the punishment laid down in the Algerian military criminal code for such
cases; the other related to the possibility that he might in the future
again be accused of Islamist sympathies. The State party considers that the
danger of imprisonment and other criminal penalties for desertion does not
in itself establish a violation of article 3 of the Convention since these
are the legal punishments for an ordinary offence in the estimation of most
States parties to the Convention. It is important to note that, although the
complainant maintains that punishment in the event of desertion may in
extreme cases extend to the death penalty, he does not claim that he himself
would incur that penalty. In fact, according to the State party, he could
not: it emerges from his own account that his desertion was an individual
act, unrelated to combat operations, after he had been suspended from flying
and assigned to the airbase, while it emerges both from his written
submission and from details of Algerian legislation compiled by Amnesty
International and submitted on the complainant's behalf that the death
penalty might possibly be applicable only in the case of a group desertion
by officers. Secondly, although the complainant maintains that he was
suspected of Islamist sympathies and tortured under questioning after
refusing to obey orders, the State party concludes from the Committee's case
law [FN3] that past torture, even where it is established that it was indeed
inflicted in circumstances coming within the scope of the Convention, does
not suffice to demonstrate a real and present danger for the future. In the
present case, the State party stresses that it emerges from the
complainant's own written submission that he was acquitted of accusations of
Islamist sympathies. The State party further considers that the potential
danger of the complainant's facing fresh charges of Islamist sympathies in
the future does not seem substantial within the meaning of article 3 of the
Convention, nor yet credible in terms of his own account, which suggests
that his service file was sufficient for the military authorities to clear
him of all suspicion in this regard and he was acquitted of the charges.
Besides, it is hardly credible that he would have been released and assigned
to the airbase if the military authorities had still had the slightest doubt
about the matter. Since they had kept him on the actual airbase, the
military authorities had clearly been convinced that not the slightest
suspicion of sympathy towards the Armed Islamist Group (GIA) could be held
against him. Here the State party notes that no complaint admissible by the
Committee could arise out of the complainant's allegations that he had
received death threats from armed Islamist groups, since such threats by a
non-governmental entity not occupying the country were in any case beyond
the scope of the Convention. Similarly, the State party notes that, although
the complainant shows with the help of medical certificates that he suffers
from a neuro-psychiatric disorder, he does not establish that this disorder,
about which he gives no details, could not be adequately treated in Algeria.
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[FN3] Ibid.
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8.7 The State party maintains that the dangers alleged by the complainant
were given a fair and thorough review under domestic procedures. It recalls
the Committee's case law whereby it is for the courts of the States parties
to the Convention, and not for the Committee, to evaluate the facts and
evidence in a particular case, unless it can be ascertained that the manner
in which such facts and evidence were evaluated was clearly arbitrary or
amounted to a denial of justice. [FN4] The question before the Committee is
whether the complainant's deportation to the territory of another State
violated France's obligations under the Convention, which means that it
should be asked whether, when the French authorities decided to enforce the
deportation order against the individual in question, they could reasonably
consider in the light of the information available to them that he would be
exposed to real danger if sent home. In actual fact, the dangers the
complainant said he would face should he be sent back to his country of
origin had been successively reviewed in France four times in six years by
three different administrative authorities and one court, all of which had
concluded that the alleged dangers were not substantial. In a judgement of 8
November 2001, the Limoges Administrative Court rejected the appeal against
the deportation order submitted by the complainant on 16 July 2001 and the
decision establishing Algeria as the country of destination, opening the way
to enforcement of the order. The court considered that the complainant's
allegations "lacked any justification". The complainant, who appealed the
judgement to the Bordeaux Administrative Court of Appeal on 4 January 2002,
makes no claim to the Committee that the manner in which the evidence he
produced was evaluated by the Court of Appeal "was clearly arbitrary or
amounted to a denial of justice". The complainant's application for
political refugee status to the French Office for the Protection of Refugees
and Stateless Persons (OFPRA) had previously been rejected, on 23 August
1995, on the grounds that he had not submitted sufficient evidence to prove
that he was personally in one of the situations for which article 1 (A) (2)
of the Geneva Convention relating to the Status of Refugees provides. The
complainant had subsequently refrained from submitting his case to the
Refugee Appeals Commission (CRR), an independent jurisdiction which carries
out de facto and de jure reviews of OFPRA decisions, thus acquiescing in the
decision taken in this regard. The complainant's situation had again been
reviewed by the Minister of the Interior on 19 December 1997 further to the
circular of 24 June 1997 on the regularization of the residence status of
certain categories of illegal aliens, which allows prefects to issue
residence permits to individuals who claim to be at risk if returned to
their country of origin. Once again, the complainant limited himself to
stating that he was a former member of the Armed Forces who had deserted
from the Algerian army and been threatened by the GIA. For want of details,
and in the absence of any justification for his allegations, his application
was rejected. Once more, the complainant did not contest this decision in
the competent domestic court. Before determining Algeria as the country he
should be deported to, the prefect of Indre had conducted a further review
of the risks he would run if returned to that country.
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[FN4] G.K. v Switzerland, Complaint No. 219/2002, Views adopted on 7 May
2003.
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8.8 In the State party's view, by the day the deportation order was
enforced, the complainant's situation must be said to have been fairly
reviewed without him showing that he would be in serious and present danger
of torture or inhuman treatment if returned to Algeria. The State party
argues that the complainant continues to fail to offering evidence of such
danger to support his complaint to the Committee.
8.9 In the circumstances, the State party was persuaded that the
complainant's appeal to the Committee was but a device to gain time, thus
abusing the State party's tradition, hitherto always respected, of
suspending enforcement of a deportation order pending the Committee's
decision on the admissibility of a complaint.
8.10 The State party explains that despite this delaying tactic the French
Government would have acceded to the Committee's request for interim
measures, albeit non-binding ones, if keeping the complainant, a
demonstrably dangerous common criminal, in France had not also presented a
particularly disproportionate risk to public order and the safety of third
parties when set against the absence of any real benefit the complainant
could hope to derive from his appeal. It was a fact that, during his first
year in France, the complainant had committed aggravated rape, threatening
his victim with a weapon, for which crime he had been imprisoned in July
1995 and sentenced by the Loiret Criminal Court to 8 years' imprisonment and
a 10-year judicial ban from French territory. He had furthermore
demonstrated the firmly-rooted and persistent nature of the danger he
represented to public order by two violent attempts to escape during his
imprisonment, in September 1995 and July 1997, each punished by a term of
eight months' imprisonment. In a situation that was extremely prejudicial to
public safety, the State party explains that it nevertheless delayed
enforcement of the deportation order long enough for a final review of the
complainant's situation, to see whether he could be kept in France as the
Committee wished. Once again, he was found not to have substantiated his
alleged fears; in the circumstances, there was no justification for
continuing to hold in France an individual who had more than demonstrated
that he was a danger to public order and whose complaint to the Committee
was quite clearly no more than a ploy to gain time, despite the obvious good
faith of the human rights associations which had supported his application.
The State party particularly stresses that house arrest would not have
provided any guarantee, given the complainant's violent history of escape
attempts. In the circumstances, the State party concluded that sending the
complainant back to his country of origin was not likely to give rise to a
"substantial danger" within the meaning of article 3 of the Convention.
8.11 As to the complainant's current situation, the State party explains
that the Algerian authorities, from whom the French Government requested
information, reported on 24 September 2003 that he was living in his home
district of Algeria.
Comments by Counsel
9.1 Counsel submitted comments on the State party's submission on 29 October
and 14 November 2003. On the binding nature of requests for interim
measures, counsel recalls that in two cases [FN5] where States parties to
the Convention carried out deportations contrary to the Committee's opinion,
the Committee found that action further to its terms of reference, which
could include the rules of procedure under which suspension had been
requested, was a treaty obligation.
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[FN5] N��ez Chipana v. Venezuela, Complaint No. 110/1998, Views adopted on
10 November 1998; and T.P.S. v. Canada, Complaint No. 99/1997, Views adopted
on 16 May 2000.
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9.2 Concerning the reasons put forward by the State party for enforcing the
deportation order, counsel maintains that the complainant trained as a
fighter pilot in Poland. Furthermore, according to counsel, his criminal act
and his two escape attempts a year earlier did not mean that he would not
have rebelled against bombing operations on civilian populations: counsel
describes the considerable unrest in the Algerian army at the time, as
illustrated by the escape of an Algerian lieutenant to Spain in 1998. As for
the State party's contention that the complainant had not shown he was in
serious danger of being tortured if he were returned to Algeria, since past
torture not sufficing to establish the existence of a real and present
danger in the future, counsel contends that the complainant actually was
tortured, that modesty made him very reticent about the after-effects on his
genitals, that he had to be treated for related psychiatric problems, and
that the administrative court had been told only very vaguely about the
torture, while a medical certificate had been submitted to the Bordeaux
Administrative Court of Appeal. As to the future, counsel submits that the
possible charges against the complainant, aggravated by the facts of his
desertion and flight to France, made the danger of torture, by the Algerian
military security in particular, sufficiently substantial to be taken into
consideration. The State party argues that the dangers alleged by the
complainant had already been reviewed thoroughly and fairly under domestic
procedures; counsel acknowledges that OFPRA rejected the complainant's
application for refugee status - on what grounds counsel does not know,
since the application was declined while the complainant was in prison.
Counsel also acknowledges that the complainant did not refer his case to the
Refugee Appeals Commission (CRR). She points out that the Limoges
Administrative Court likewise refused to overturn the decision establishing
Algeria as the country of return although the interim relief judge had
suspended the decision. Lastly, the complainant's more detailed submission
to the Bordeaux Administrative Court of Appeal should have urged the
administration to greater caution and, thus, to suspend his deportation.
9.3 Concerning the danger represented by the complainant and the risk to
public safety, counsel maintains that he committed a serious act, but did
not thereby pose a serious risk to the general public. On 18 March 1999, the
complainant married a French citizen and had a daughter. When he left
prison, no immediate attempt was made to deport him although the
Administration could have again tried to do so. According to counsel, it was
only following a chance incident, in the form of a dispute with security
officers, that the deportation order was reactivated.
9.4 In relation to the complainant's present situation, counsel considers
that the State party's information is incorrect. She states that neither she
nor his family in France have any news of him and that his brother in
Algiers denies that he is living at the address given by the State party.
Even if the complainant was where the State party said, remote though it is,
counsel questions why there is no word from him: it could indicate that he
is missing.
Supplementary Submissions by Counsel
10. On 14 January 2004, counsel submitted a copy of the decision by the
Bordeaux Administrative Court of Appeal of 18 November 2003 overturning the
judgement of the Limoges Administrative Court of 8 November 2001 and the
decision of 23 May 2001 in which the prefect of Indre ordered the
complainant to be returned to his country of origin. Concerning the decision
to expel the complainant, the Court of Appeal reasoned as follows:
"CONSIDERING
that [the complainant] claims that he was subjected to torture and, several
times, to attempted murder on account of his desertion from the national
army because of his opposition to the operations to maintain order directed
against the civilian population;
that in support of his submissions to the court and concerning the risks of
inhuman or degrading treatments to which his return to this country
[Algeria] would expose him, he has supplied various materials, and notably a
decision of the United Nations Committee against Torture concerning him,
which are of such a nature as to attest to the reality of these risks;
that these elements, which were not known to the prefect of Indre, have not
been contradicted by the minister of the interior, internal security and
local liberties, who despite the request addressed to him by the court, did
not produce submissions in defence before the closure of proceedings;
that, in these circumstances, [the complainant] must be considered as having
established, within the meaning of article 27 bis cited above of the
ordinance of 2 November 1945 [providing that "an alien cannot be returned to
a State if it is established that his life or liberty are threatened there
or he would be exposed to treatment contrary to article 3 of the European
Convention], that he is exposed in Algeria to treatments contrary to article
3 of the European Convention on Human Rights and Fundamental Freedoms;
that, as a result, his request for the annulment of the decision to return
him to his State of origin taken by the prefect of Indre on 23 May 2001 is
well-founded".
The State Party's Comments on the Supplementary Submissions
11.1 On 14 April 2004, the State party contended that the question before
the Committee was whether refoulement of the complainant to another State
violated France's obligations under the Convention; in other words whether,
when the French authorities decided to enforce the deportation order they
could reasonably think, in the light of the information available to them,
that Mr. Brada would be exposed to substantial danger if sent home. The
State party alludes to the Committee's case law holding that an individual
claiming to be in danger if returned to a specific country is responsible,
at least beyond reasonable doubt, for establishing that his fears are
substantial. According to the State party, however, the complainant had
produced no evidence before either the administrative court or the
administrative authorities to substantiate his alleged fears about being
returned to Algeria. The interim relief judge of the Limoges Administrative
Court, to whom the complainant appealed against the decision of 29 August
2001 to deport him to Algeria, suspended the decision as to where the
complainant should be deported pending a final judgement on the merits, so
as to protect the complainant's situation should his fears prove justified.
Noting, however, that the complainant's allegations were not accompanied by
any supporting evidence, the Administrative Court subsequently rejected the
appeal in a ruling dated 8 November 2001.
11.2 Ruling on 18 November 2003 on the complainant's appeal against the
ruling by the Limoges Administrative Court of 8 November 2001, the Bordeaux
Administrative Court of Appeal found that, given the seriousness of his
crimes, the prefect of Indre could legitimately have considered that the
complainant's presence on French territory constituted a serious threat to
public order, and that his deportation was not, in the circumstances, a
disproportionate imposition on his private and family life.
11.3 The court went on to overturn the judgement of the Limoges
Administrative Court and the decision by the prefect of Indre to remove the
individual in question to his country of origin on the strength of article 3
of the European Convention on Human Rights and article 27 bis of the order
of 2 November 1945 prohibiting the deportation of an alien to a country
where it is established that he would be exposed to treatment contrary to
article 3 of the Convention.
11.4 According to the State party, particular stress should be placed on the
fact that, in so doing, the Administrative Court of Appeal based its ruling
on evidence which, it noted expressly, was new. It deduced that, in the
circumstances, the complainant's allegations must be considered well-founded
unless contradicted by the Minister of the Interior, and thus overturned the
decision establishing the country of destination.
11.5 The State party stresses that the court's proviso - unless contradicted
by the Ministry of the Interior - should not be understood to indicate that
the administration was prepared to acknowledge that the complainant's
submissions were compelling. The court was unable to take account of
evidence produced by the administration for the defence only because of the
rules on litigious proceedings deriving from article R.612.6 of the Code of
Administrative Justice: the defence brief produced by the Ministry of the
Interior reached the court some days after the termination of pre-trial
proceedings.
11.6 Furthermore, the State party explains that the key point on which the
court based its decision is the very decision the Committee used to find the
present complaint admissible. In pronouncing on admissibility, however, the
Committee did not take any stand on the merits of the complaint, nor on the
establishment by the complainant, beyond reasonable doubt, of the facts he
invoked, since they could only be evaluated in the context of the decision
on the merits of the complaint. The State party concludes that, given the
reasoning behind it, the decision by the Administrative Court of Appeal does
nothing to strengthen the complainant's position before the Committee.
11.7 This being so, the State party alludes to the Committee's recently
reiterated view that it is for the courts of the States parties to the
Convention, and not for the Committee, to evaluate the facts and evidence in
a particular case, unless it can be ascertained that the manner in which
such facts and evidence were evaluated was clearly arbitrary or amounted to
a denial of justice. [FN6] The ruling by the Administrative Court of Appeal
shows precisely that the manner in which the domestic courts examined the
facts and evidence produced by the complainant cannot be regarded as clearly
arbitrary or tantamount to a denial of justice.
---------------------------------------------------------------------------------------------------------------------
[FN6] Op.cit.
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11.8 In conclusion, the State party maintains that France cannot be held to
have ignored its treaty obligations by removing the individual in question
to his country of origin after checking several times, before arriving at
that decision, that the complainant could not reasonably be considered to be
exposed to danger if he was sent home. With regard to the Committee's case
law, it cannot be supposed that the French authorities could reasonably have
considered that he would be exposed to real danger in the event of being
sent home when they decided to enforce the deportation order against him.
Comments by Counsel
12. In her comments of 11 June 2004, counsel maintains that the State party
violated article 3 of the Convention. She adds that she had had a telephone
conversation with the complainant, who said he had been handed over by the
French police to Algerian agents in the plane; on leaving Algiers airport in
a van, he was handed over to the Algerian secret services who kept him in
various different venues for a year and half before releasing him without
documents of any kind, apparently pending a judgement, the judgement in
absentia having been annulled. The complainant claims he was severely
tortured.
Consideration of the Merits
13.1 The Committee must decide, pursuant to article 3, paragraph 1, of the
Convention, whether there are substantial grounds for believing that the
complainant would be in danger of being subjected to torture upon return to
Algeria. The Committee observes, at the outset, that in cases where a person
has been expelled at the time of its consideration of the complaint, the
Committee assesses what the State party knew or should have known at the
time of expulsion. Subsequent events are relevant to the assessment of the
State party's knowledge, actual or constructive, at the time of removal.
13.2 In reaching this decision, 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. 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
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 a sufficient ground for determining that a particular person
would be in danger of being subjected to torture upon his 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. In deciding a particular case, the Committee recalls
that, according to its General Comment on article 3 of the Convention, it
gives "considerable weight" to the findings of national authorities.
13.3 At the outset, the Committee observes that at the time of his expulsion
on 30 September 2002, an appeal lodged by the complainant with the Bordeaux
Administrative Court of Appeal on 4 January 2002 was still pending. This
appeal contained additional arguments against his deportation that had not
been available to the prefect of Indre when the decision of expulsion was
taken and of which the State party's authorities were, or should have, been
aware still required judicial resolution at the time he was in fact
expelled. Even more decisively, on 19 December 2001, the Committee had
indicated interim measures to stay the complainant's expulsion until it had
had an opportunity to examine the merits of the case, the Committee having
established, through its Special Rapporteur on Interim Measures, that in the
present case the complainant had established an arguable risk of irreparable
harm. This interim measure, upon which the complainant was entitled to rely,
was renewed and repeated on 26 September 2002.
13.4 The Committee observes that the State party, in ratifying the
Convention and voluntarily accepting the Committee's competence under
article 22, undertook to cooperate with it in good faith in applying and
giving full effect to the procedure of individual complaint established
thereunder. The State party's action in expelling the complainant in the
face of the Committee's request for interim measures nullified the effective
exercise of the right to complaint conferred by article 22, and has rendered
the Committee's final decision on the merits futile and devoid of object.
The Committee thus concludes that in expelling the complainant in the
circumstances that it did the State party breached its obligations under
article 22 of the Convention.
13.5 The Committee observes, turning to issue under article 3 of the
Convention, that the Bordeaux Administrative Court of Appeal, following the
complainant's expulsion, found upon consideration of the evidence presented,
that the complainant was at risk of treatment in breach of article 3 of the
European Convention, a finding which would could encompass torture (see
paragraph 10.1 above). The decision to expel him was thus, as a matter of
domestic law, unlawful.
13.6 The Committee observes that the State party is generally bound by the
findings of the Court of Appeal, with the State party observing simply that
the Court had not considered the State's brief to the court which arrived
after the relevant litigation deadlines. The Committee considers, however,
that this default on the part of the State party cannot be imputed to the
complainant, and, moreover, whether the Court's consideration would have
been different remains speculative. As the the State party itself states
(see paragraph 11.7) and with which the Committee agrees, the judgment of
the Court of Appeal, which includes the conclusion that his expulsion
occurred in breach of article 3 of the European Convention, cannot on the
information before the Committee be regarded as clearly arbitrary or
tantamount to a denial of justice. As a result, the Committee also concludes
that the complainant has established that his removal was in breach of
article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
14. 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 deportation of the complainant
to Algeria constituted a breach of articles 3 and 22 of the Convention.
15. Pursuant to rule 112, paragraph 5, of its rules of procedure, the
Committee wishes to be informed, within 90 days, of the steps the State
party has taken in response to the views expressed above, including measures
of compensation for the breach of article 3 of the Convention and
determination, in consultation with the country (also a State party to the
Convention) to which the complainant was returned, of his current
whereabouts and state of well-being.
[Adopted in English, French, Russian and Spanish, the French 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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