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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 20 May 2005,
Having considered complaint No. 233/2003, submitted to the Committee against
Torture by Mr. Ahmed Hussein Mustafa Kamil Agiza, 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 and the State party,
Adopts the following decision:
Decision of the Committee Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is Ahmed Hussein Mustafa Kamil Agiza, an Egyptian
national born on 8 November 1962, detained in Egypt at the time of
submission of the complaint. He claims that his removal by Sweden to Egypt
on 18 December 2001 violated article 3 of the Convention. He is represented
by counsel, who provides as authority to act a letter of authority issued by
the complainant's father. The complainant himself, detained, is allegedly
not allowed to sign any documents for external purposes without special
permission from the Egyptian State prosecutor, and according to counsel such
a permit cannot be expected.
The Facts as Presented
2.1 In 1982, the complainant was arrested on account of his family
connection to his cousin, who had been arrested for suspected involvement in
the assassination of the former Egyptian President, Anwar Sadat. Before his
release in March 1983, he was allegedly subjected to torture. The
complainant, active at university in the Islamic movement, completed his
studies in 1986 and married Ms. Hannan Attia. He avoided various police
searches, but encountered difficulties, such as the arrest of his attorney,
when he brought a civil claim in 1991 against the Ministry of Home Affairs,
for suffering during his time in prison.
2.2 In 1991, the complainant left Egypt for Saudi Arabia on security
grounds, and thereafter to Pakistan, where his wife and children joined him.
After the Egyptian embassy in Pakistan refused to renew their passports, the
family left in July 1995 for Syria under assumed Sudanese identities, in
order to continue to Europe. This plan failed and the family moved to Iran,
where the complainant was granted a university scholarship.
2.3 In 1998, the complainant was tried in Egypt for terrorist activity
directed against the State before a "Superior Court Martial" in absentia,
along with over one hundred other accused. He was found guilty of belonging
to the terrorist group "Al Gihad", and was sentenced, without possibility of
appeal, to 25 years' imprisonment. In 2000, concerned that improving
relations between Egypt and Iran would result in his being returned to
Egypt, the complainant and his family bought air tickets, under Saudi
Arabian identities, to Canada, and claimed asylum during a transit stop in
Stockholm, Sweden, on 23 September 2000.
2.4 In his asylum application, the complainant claimed that he had been
sentenced to "penal servitude for life" in absentia on account of terrorism
linked to Islamic fundamentalism, [FNb] and that, if returned, he would be
executed as other accused in the same proceedings allegedly had been. His
wife contended that, if returned, she would be detained for many years, as
the complainant's wife. On 23 May 2001, the Migration Board sought the
opinion of the Swedish Security Police on the case. On 14 September 2001,
the Migration Board held a "major enquiry" with the complainant, with a
further enquiry following on 3 October 2001. During of the same month, the
Security Police questioned the complainant. On 30 October 2001, the Security
Police advised the Migration Board that the complainant held a leading
position in an organisation guilty of terrorist acts and was responsible for
the activities of the organisation. The Migration Board thus forwarded the
complainant's case, on 12 November 2001, to the Government for a strength of
the decision under chapter 7, section 11(2)(2), of the Aliens Act. In the
Board's view, on the information before it, the complainant could be
considered entitled to claim refugee status; however, the Security Police's
assessment, which the Board saw no reason to question, pointed in a
different direction. The balancing of the complainant's possible need for
protection against the Security Police's assessment, thus had to be made by
the Government. On 13 November 2001, the Aliens Appeals Board, whose view
the Government had sought, shared the Migration Board's assessment of the
merits and also considered that the Government should decide the matter. In
a statement, the complainant denied belonging to the organisation referred
to in the Security Police statement, arguing that one of the designated
organisations was not a political organisation but an Arab-language
publication. He also claimed that he had criticised Usama Bin Laden and the
Afghan Taliban in a letter to a newspaper.
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[FNb] Counsel explains the deviation from the actual sentence on the basis
that a 25-year sentence amounted to the same, as few could be expected to
survive that length of time in prison.
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2.5 On 18 December 2001, the Government rejected the asylum applications of
the complainant and of his wife. The reasons for these decisions are omitted
from the text of this decision at the State party's request and with the
agreement of the Committee. Accordingly, it was ordered that the complainant
be deported immediately and his wife as soon as possible. On 18 December
2001, the complainant was deported, while his wife went into hiding to avoid
police custody.
2.6 On 23 January 2002, the Swedish Ambassador to Egypt met the complainant
at Mazraat Tora prison outside Cairo. [FNc] The same day, the complainant's
parents visited him for the first time. They allege that they when they met
him in the warden's office, he was supported by an officer and near
breakdown, hardly able to shake his mother's hand, pale and in shock. His
face, particularly the eyes, and his feet were swollen, with his cheeks and
bloodied nose seemingly thicker than usual. The complainant allegedly said
to his mother that he had been treated brutally upon arrest by the Swedish
authorities. During the eight hour flight to Egypt, in Egyptian custody, he
allegedly was bound by hands and foot. Upon arrival, he was allegedly
subjected to "advanced interrogation methods" at the hand of Egyptian state
security officers, who told him the guarantees provided by the Egyptian
Government concerning him were useless. The complainant told his mother that
a special electric device with electrodes connected to his body was
utilized, and that electric shocks were utilized if he did not respond
properly to orders.
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[FNc] Counsel states that the following information concerning the
complainant's whereabouts and well-being originates from Swedish diplomatic
sources, the complainant's parents, a Swedish radio reporter and the
complainant's Egyptian attorney.
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2.7 On 11 February 2002, a correspondent for Swedish radio visited the
complainant in prison. According to him, the complainant walked with
difficulty but he could not see any sign of torture. In response to a
question by counsel, the correspondent stated that he had explicitly asked
the complainant if he had been tortured, and that he had replied that he
could not comment. After the initial visit, the Ambassador or other Swedish
diplomats were permitted to visit the complainant on a number of occasions.
Counsel states that what can be understood from the diplomatic dispatches up
to March 2003, is that the complainant had been treated "relatively well",
and that he had not been subjected to torture even if the prison conditions
were harsh.
2.8 On 16 April 2002, the complainant's parents again visited him. He
allegedly told his mother that after the January visit further electric
shocks had been applied, and that for the last ten days he had been held in
solitary confinement. His hands and legs had been tied, and he had not been
allowed to visit a toilet. At a following visit, he told his parents that he
was still in solitary confinement but no longer bound. He was allowed to
visit a toilet once a day, and the cell was cold and dark. With reference to
a security officer, he was said to have asked his mother, "do you know what
he does to me during the nights?" He had also been told that his wife would
soon be returned to Egypt and that she and his mother would be sexually
assaulted in his presence. Thereafter, the complainant's parents visited him
once a month until July 2002 and then every fortnight. According to counsel,
the information available is that he is held in a two square meter cell,
which is artificially cooled, dark and without a mattress to sleep on. His
toilet visits are said to be restricted.
2.9 In December 2002, the complainant's Egyptian lawyer, Mr. Hafeez Abu
Saada, the head of an Egyptian human rights organization with knowledge of
local conditions of detention and interrogation methods, met in Cairo with
Mr. Thomas Hammarberg, head of the Olaf Palme International Centre. Mr. Abu
Saada expressed his belief that the complainant had been subjected to
torture.
2.10 On 5 March 2003, the Swedish Ambassador met the complainant with a
human rights envoy from the Swedish Ministry of Foreign Affairs. The
complainant allegedly stated for the first time that he had been subjected
to torture. In response to the question as to why he had not mentioned this
before, he allegedly responded, "It does no longer matter what I say, I will
nevertheless be treated the same way".
The Complaint
3.1 Counsel claims that the reason that he lodged the complainant over one
and a half years after the complainant's removal was that for a long period
it was uncertain who was able to represent him. Counsel contends that the
original intention had been for lawyer who had represented the complainant
in domestic proceedings in Sweden to submit the complaint; "due to the
circumstances", that lawyer found himself "unable to fulfill the commission"
and transferred the case to present counsel "some months ago". Counsel adds
that it had been difficult to obtain the complainant's personal consent to
lodge a complaint.
3.2 As to the merits, counsel argues that the complainant's removal to Egypt
by Sweden violated his right under article 3 of the Convention. He bases
this proposition both on what was known at the time the complainant was
expelled, as viewed in the light of subsequent events. He contends that it
has been satisfactorily established that the complainant was in fact
subjected to torture after his return.
3.3 Counsel argues that torture is a frequently used method of interrogation
and punishment in Egypt, particularly in connection with political and
security matters, and that accordingly the complainant, accused of serious
political acts, was at substantial risk of torture. In counsel's view, the
State party must have been aware of this risk and as a result sought to
obtain a guarantee that his human rights would be respected. Counsel
emphasizes, however, that no arrangements had been made prior to expulsion
as to how the guarantees in question would be implemented after the
complainant's return to Egypt. Counsel refers to the judgment of the
European Court of Human Rights in Chahal v. United Kingdom, [FNd] where the
Court found a guarantee provided by the Indian government to be, of its own,
insufficient protection against human rights violations.
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[FNd] Judgment of 15 November 1996.
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3.4 Subsequent events are said to bear out this view. Firstly, Amnesty
International expressed concerns about the complainant's situation in
communiqués dated 19 and 20 December 2001, 10, 22 January, and 1 February
2002. Secondly, the conclusions drawn by the State party as a result of its
visits should be discounted because they took place in circumstances which
were deficient. In particular, the visits were short, took place in a prison
which is not the one where the complainant was actually detained, were not
conducted in private and without the presence of any medical practitioners
or experts. Thirdly, independent evidence tends to corroborate that torture
did occur. Weight should be attached to the complainant's parents' testimony
as, although supervised, not every word was recorded as it was with the
official visits and there was opportunity for him to share sensitive
information, especially when bidding his mother farewell. In the course of
these visits, supervision lessened, with persons entering and leaving the
room. Counsel argues it would not be in the parents' or the complainant's
interests for them to have overrepresented the situation, as this would
needlessly put him at risk of prejudicial treatment as well as distress the
complainant's family still in Sweden. In addition, the parents, elderly
persons without political motivation, would thereby be placing themselves at
risk of reprisal.
3.5 Furthermore, the complainant's Egyptian lawyer is well qualified to
reach his conclusion, after meeting with the complainant, that he had been
tortured. Mr. Hammarberg, for his part, considers this testimony reliable.
In advice dated 28 January 2003 provided by Mr. Hammarberg to counsel, the
former considered that there was prima facie evidence of torture. He was
also of the view that there were deficiencies in the monitoring arrangements
implemented by the Swedish authorities, given that during the first weeks
after return there were no meetings, while subsequent meeting were neither
in private nor with medical examinations undertaken.
3.6 For counsel, the only independent evidence on the question, that of the
radio correspondent's visit, confirms the above conclusions, as the
complainant declined to answer a direct question as to whether he had been
tortured. He would not have done this had he not feared further reprisals.
The complainant also informed the Swedish Ambassador directly on 5 March
2003 that he had been subjected to torture, having by that point allegedly
given up any hope that the situation would change.
3.7 Counsel concludes that the complainant's ability to prove torture has
been very limited, though he has done his best to inform on his experiences
in prison. He has been unable to present a full statement of his experiences
or corroborative evidence such as medical reports.
The State Party's Submissions on the Admissibility and Merits of the
Complaint
4.1 By submission of 5 December 2003, the State party contests both the
admissibility and the merits of the complaint. It regards complaint as
inadmissible (i) for the time elapsed since the exhaustion of domestic
remedies, (ii) as an abuse of process, and (iii) as manifestly ill-founded.
4.2 While accepting that neither the Convention not the Committee's case law
prescribe a definitive timeframe within which a complaint must be submitted,
the State party submits that in light of the content of Rule 107(f) [FNe] of
the Committee's rules of procedure, this cannot mean that a complaint could
never be time-barred. The State party refers to the six month limit
applicable to cases submitted to the European Court of Human Rights,
including with respect to expulsion cases arising under article 3 of the
European Convention, and the strong rationale of legal certainty for both
complainants and States underlying that rule. The State party argues that
this principle of legal certainty must be considered as one of the
fundamental principles inherent in the international legal order. As the
Convention as well as the European Convention are both important parts of
international human rights law, it would be natural for one regime to seek
guidance from another on an issue on which the former is silent. In view of
Rule 107(f) of the Committee's Rules, [FN4] therefore, a six-month limit
could arguably serve as a point of departure for the Committee.
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[FNe] Rule 107(f) provides: "With a view to reaching a decision on the
admissibility of a complaint, the Committee, its Working Group or a
rapporteur designated under rules 98 or 106, paragraph 3, shall ascertain: …
(f) That the time elapsed since the exhaustion of domestic remedies is not
so unreasonably prolonged as to render consideration of the claims unduly
difficult by the Committee or the State party."
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4.3 With respect to the present case, the State party argues that no
convincing information has been provided for the delay of over one and a
half years in submission of the complaint. As counsel derives his authority
to act from the complainant's father rather than the complainant himself,
there is no reason why this could not have been obtained at an earlier
stage. Nor does it appear that any attempt was made shortly after expulsion
to obtain authority to act from this or another relative, such as the
complainant's wife in Sweden. The State party refers to the complaint
submitted by the same counsel on behalf of the complainant's wife in
December 2001, [FNf] where it was argued that her situation was so closely
linked to that of the present complaint that it was impossible to argue her
case without referring to his. The arguments advanced in her case show that
counsel was well acquainted with the circumstances presently invoked, and he
should not be allowed to argue that the delay was due to his involvement
with the family's case until a much later stage. There is, in the State
party's view, no reason why the present complainant could not have been
included in the first complaint submitted in December 2001. Accordingly, the
State party argues that in the interests of legal certainty, the time that
has elapsed since exhaustion of domestic remedies is unreasonably prolonged,
and the complaint is inadmissible pursuant to article 22, paragraph 2, of
the Convention and Rule 107(f).
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[FNf] Hanan Ahmed Fouad Abd El Khalek Attia v. Sweden, Case No 199/2002,
Decision adopted on 17 November 2003.
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4.4 The State party also argues that the complaint discloses an abuse of the
right of submission, disputing whether the complainant can be considered to
have justifiable interest in having his complaint considered by the
Committee. The factual basis of the current complaint is the same as that
submitted on his wife's behalf in December 2001, [FNg] with the crucial
issue in both cases relating to the guarantees issued by the Egyptian
authorities prior to and for the purpose of the expulsion of the complainant
and his family. In its decision on that case, after having assessed the
value of the guarantees and finding no violation of the Convention, the
Committee already dealt with the very issue raised by the present complaint.
The issue should accordingly be considered res judicata.
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[FNg] Ibid.
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4.5 Furthermore, within the framework of the proceedings concerning the
complaint by the complainant's wife, the same extensive information has been
submitted concerning his past activities, present whereabouts and conditions
of detention. As both complaints were submitted by the same counsel, the
present complaint places an unnecessary burden both on the Committee and the
State party. Accordingly, the complainant does not have a demonstrable
interest in having his complaint examined by the Committee. It should thus
be regarded as an abuse of the right of submission and inadmissible pursuant
to article 22, paragraph 2, of the Convention and Rule 107(b). [FNh]
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[FNh] Rule 107(b) provides: "With a view to reaching a decision on the
admissibility of a complaint, the Committee, its Working Group or a
rapporteur designated under rules 98 or 106, paragraph 3, shall ascertain: …
(b) That the complaint is not an abuse of the Committee's process or
manifestly unfounded."
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4.6 Finally, the State party considers the complaint manifestly unfounded,
as the complainant's claims fail to rise to the basic level of
substantiation required in light of the arguments on the merits set out
below. It should thus be declared inadmissible under article 22, paragraph
2, of the Convention and Rule 107(b).
4.7 On the merits, the State party sets out the particular mechanisms of the
Aliens Act 1989 applicable to cases such as the complainant's. While asylum
claims are normally dealt with by the Migration Board and, in turn, the
Aliens Appeals Board, under certain circumstances either body may refer the
case to the Government, while appending its own opinion. This constellation
arises if the matter is deemed to be of importance for the security of the
State or otherwise for security in general, or for the State's relations
with a foreign power (chapter 7, section 11(2)(2), of the Act). If the
Migration Board refers a case, it must first be forwarded to the Aliens
Appeals Board which provides its own opinion on the case.
4.8 An alien otherwise in need of protection on account of a well-founded
fear of persecution at the hand of the authorities of another State on
account of a reason listed in the Convention on the Status of Refugees
(under chapter 3, section 2, of the Act) may however be denied a residence
permit in certain exceptional cases, following an assessment of that alien's
previous activities and requirements of the country's security (chapter 3,
section 4 of the Act). However, no person at risk of torture may be refused
a residence permit (chapter 3, section 3 of the Act). In addition, if a
person has been refused a residence permit and has had an expulsion decision
issued against him or her, an assessment of the situation at the enforcement
stage must be made to avoid that an individual is expelled to face, inter
alia, torture or other cruel, inhuman or degrading treatment or punishment.
4.9 The State party recalls UN Security Council Resolution 1373 of 28
September 2001, which enjoins all UN Member States to deny safe haven to
those who finance, plan, support or commit terrorist acts, or themselves
provide safe haven. The Council called on Member States to take appropriate
measures, consistent with international human rights and refugee law, to
ensure asylum seekers have not planned, facilitated, or participated in,
terrorist acts. It also called upon Member States to ensure, in accordance
with international law, that the institution of refugee status is not abused
by perpetrators, organizers or facilitators of terrorist acts. In this
context, the State party refers to the Committee's statement of 22 November
2001, in which it expressed confidence that responses to threats of
international terrorism adopted by States parties would be in conformity
with their obligations under the Convention.
4.10 The State party also recalls the interim report [FNi] submitted in July
2002 by the Special Rapporteur of the Commission on Human Rights on the
question of torture and other cruel, inhuman or degrading treatment or
punishment, submitted in accordance with resolution 56/143 of 19 December
2001. In his report, the Special Rapporteur urged States "to ensure that in
all appropriate circumstances the persons they intend to extradite, under
terrorist or other charges, will not be surrendered unless the Government of
the receiving country has provided an unequivocal guarantee to the
extraditing authorities that the persons concerned will not be subjected to
torture or any other forms of ill-treatment upon return, and that a system
to monitor the treatment of the persons in question has been put into place
with a view to ensuring that they are treated with full respect for their
human dignity" (paragraph 35).
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[FNi] A/57/173, 2 July 2002.
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4.11 As to the facts of the present case, the State party details the
information obtained by its Security Police, which led it to regard the
complainant as a serious security threat. At the State party's request, this
information, while transmitted to counsel for the complainant in the context
of the confidential proceedings under article 22 of the Convention, is not
set out in the Committee's public decision on the present complaint.
4.12 The State party observes that on 12 December 2001, after referral of
the case from the Migration and Aliens Appeals Boards, a state secretary of
its Ministry of Foreign Affairs met with a representative of the Egyptian
government in Cairo. At the State party's request and with the Committee's
agreement, details of the identity of the interlocutor are deleted from the
text of the decision. As the State party was considering to exclude the
complainant from protection under the Refugee Convention, the purpose of the
visit was to determine the possibility, without violating Sweden's
international obligations, including those arising under the Convention, of
returning the complainant and his family to Egypt. After careful
consideration of the option to obtain assurances from the Egyptian
authorities with respect to future treatment, the State party's government
concluded it was both possible and meaningful to inquire whether guarantees
could be obtained to the effect that the complainant and his family would be
treated in accordance with international law upon return to Egypt. Without
such guarantees, return to Egypt would not be an alternative. On 13 December
2002, requisite guarantees were provided.
4.13 The State party then sets outs in detail its reasons for refusing, on
18 December 2001, the asylum claims of the complainant and his wife. These
reasons are omitted from the text of this decision at the State party's
request and with the agreement of the Committee.
4.14 The State party advises that the complainant's current legal status is,
according to the Egyptian Ministries of Justice and Interior, that he
presently serves a sentence for his conviction, in absentia, by a military
court for, among other crimes, murder and terrorist activities. His family
provided him with legal representation, and in February 2002, a petition for
review of the case was filed with the President. By October 2002, this had
been dealt with by the Ministry of Defence and would soon be handed to the
President's office for decision. Turning to the monitoring of the
complainant's situation after his expulsion, the State party advises that
his situation has been monitored by the Swedish embassy in Cairo, mainly by
visits approximately once every month. As of the date of submission, there
had been seventeen visits. [FNj] On most occasions, visitors have included
the Swedish Ambassador, and several on other visits a senior official from
the Ministry of Foreign Affairs.
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[FNj] These took place on 23 January, 7 March, 14 April, 27 May, 24 June, 22
July, 9 September and 4 November 2002, as well as 19 January, 5 March, 9
April, 14 May, 9 June, 29 July, 25 August, 30 September and 17 November
2003.
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4.15 According to the embassy, these visits have over time developed into
routine, taking place in the prison superintendent's office and lasting an
average 45 minutes. At no time has the complainant been restrained in any
fashion. The atmosphere has been relaxed and friendly, with the visitors and
the complainant being offered soft drinks. At the end of the June 2002
visit, embassy staff observed the complainant in seemingly relaxed
conversation with several prison guards, awaiting return to detention. At
all times he has been dressed in clean civilian clothes, with well-trimmed
beard and hair. He appeared to be well-nourished and not to have lost weight
between visits. At none of the visits did he show signs of physical abuse or
maltreatment, and he was able to move around without difficulty. At the
request of the Ambassador, in March 2002, he removed his shirt and
undershirt and turned around, disclosing no sign of torture.
4.16 In the embassy's report of the first (January 2002) visit, the
complainant did not seem to hesitate to speak freely, and told the
Ambassador that he had no complaints as to his treatment in prison. Asked
whether he had been subjected to any kind of systematic abuse, he made no
claim to such effect. When asked during the April 2002 visit whether he had
been in any way maltreated, he noted that he had not been physically abused
or otherwise maltreated. During most visits he had complaints concerning his
general health, concerning a bad back, gastric ulcer, kidney infection and
thyroid gland, causing inter alia sleeping problems. He had seen a variety
of internal and external medical specialists, and had had an MRI spinal
examination, physiotherapy for his back and an X-ray thyroid gland
examination. The X-ray revealed a small tumour for which he will undergo
further tests. In August 2003, he expressed to the Ambassador, as he had
done before, his satisfaction with the medical care received. At the
November 2003 visit, he advised that a neurologist had recommended a back
operation. He has received regular medication for various health problems.
4.17 During the May and November 2002 visits, the complainant remarked
adversely about the general conditions of detention. He referred to the
absence of beds or toilets in the cell, and that he was being held in a part
of the prison for unconvicted persons. According to him, this generally
improved after December 2002, when he was no longer kept apart from other
prisoners and could walk in the courtyard. In January 2003, he was moved on
health grounds to a part of the prison with a hospital ward. In March 2003,
in response to a question, he said he was treated neither better nor worse
than other prisoners; general prison conditions applied. At no subsequent
visits did he make such complaints.
4.18 On 10 February 2002, that is at an early stage of detention, the
Swedish national radio reported on a visit by one of its correspondents with
the complainant in the office of a senior prison official. He was dressed in
dark-blue jacket and trousers, and showed no external signs of recent
physical abuse, at least on his hands or face. He did have some problems
moving around, which he ascribed to a long-term back problem. He complained
about not being allowed to read and about lack of a radio, as well as lack
of permission to exercise.
4.19 Further issues that have been brought up regularly between the
complainant and embassy staff are visits from family and lawyers. Following
the June 2002 visit, a routine of fortnightly family visits appeared to have
been established. At the time of submission this routine continued, though
visits in May and June 2003 were restricted for security reasons. The
complainant remarked that he had only received two visits from his lawyer,
in February and March 2002. He had not requested to see his lawyer as he
considered it meaningless. This issue was raised in the embassy's follow-up
meetings with Egyptian government officials, who affirmed that the
complainant's lawyer is free to visit and that no restrictions apply.
4.20 As the complainant on several occasions and in reply to direct
questions, stated he had not suffered abuse, the Ambassador concluded after
the November 2002 visit that, although the detention was mentally trying,
there was no indication that the Egyptian authorities had breached the
guarantees provided. The State party details certain allegations
subsequently made by the complainant and the actions it took in response
thereto. At the request of the State party and with the Committee's
agreement, details of these matters are not included in the text of this
decision.
4.21 As to the application of the Convention, the State party observes that
the present case differs from most article 3 complaints before the Committee
in that the expulsion has already taken place. The wording of article 3 of
the Convention however implies that the Committee's examination of the case
must focus on the point in time when the complainant was returned to his
country of origin. Events that have taken place or observations made
thereafter may naturally be of interest in establishing whether the
guarantees provided have been respected, and this bears on the assessment of
the State party's Government that the complainant would not be treated
contrary to the Convention was in fact correct. But while such developments
are relevant, the State party maintains that the principal question in the
current complaint is whether or not its authorities had reason to believe,
at the time of the complainant's expulsion on 18 December 2001, that
substantial grounds existed for believing him to be at risk of torture.
4.22 The State party refers to the Committee's constant jurisprudence that
an individual must show a foreseeable, real and personal risk of torture.
Such a risk must rise beyond mere theory or suspicion, but does not have to
be highly probable. In assessing such a risk, a standard which is
incorporated into Swedish law, the guarantees issued by the Egyptian
government are of great importance. The State party recalls the Committee's
decision on the complaint presented by the complainant's wife where the same
guarantees were considered effective, [FNk] and refers to relevant decisions
of the European organs under the European Convention on Human Rights.
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[FNk] Attia v. Sweden, communication No. 199/2002, op. cit.
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4.23 In Aylor-Davis v. France (judgment of 20 January 1994), it was held
that guarantees from the receiving country, the United States, were found to
eliminate the risk of the applicant being sentenced to death. The death
penalty could only be imposed if it was actually sought by the State
prosecutor. By contrast, in Chahal v. United Kingdom, the Court was not
persuaded that assurances from the Indian government that a Sikh separatist
"would enjoy the same legal protection as any other Indian citizen, and that
he would have no reason to expect mistreatment of any kind at the hand of
the Indian authorities" would provide an adequate guarantee of safety. While
not doubting the Indian government's good faith, it appeared to the Court
that despite the efforts inter alia of the Indian government and courts to
bring about reform, violations of human rights by members of the security
forces in Punjab and elsewhere in India remained a recurrent problem. The
case law thus suggests that guarantees may be accepted where the authorities
of the receiving State can be assumed to have control of the situation.
4.24 Applying this test, the State party argues that the current case is
more in line with Aylor-Davis. The guarantees were issued by a senior
representative of the Egyptian government.The State party points out that if
assurances are to have effect, they must be issued by someone who can be
expected to be able to ensure their effectiveness, as, in the State party's
view, was presently the case in light of the Egyptian representative's
senior position. In addition, during the December 2001 meeting between the
Swedish state secretary and the Egyptian official, it was made clear to the
latter what was at stake for Sweden: as article 3 of the Convention is of
absolute character, the need for effective guarantees was explained at
length. The state secretary reaffirmed the importance for Sweden to abide by
its international obligations, including the Convention, and that as a
result specific conditions would have to be fulfilled in order to make the
complainant's expulsion possible. It was thus necessary to obtain written
guarantees of fair trial, that he would not be subjected to torture or other
inhuman treatment, and that he would not be sentenced to death or executed.
The trial would be monitored by the Swedish embassy in Cairo, and it should
be possible to visit the complainant, even after conviction. Moreover, his
family should not be subjected to any kind of harassment. It was made clear
that Sweden found itself in a difficult position, and that Egypt's failure
to honour the guarantees would impact strongly on other similar European
cases in the future.
4.25 The State party expands on the details of these guarantees. They are
omitted from the text of this decision at the request of the State party,
and with the consent of the Committee. The State party points out that the
guarantees are considerably stronger than those provided in Chahal and are
couched much more affirmatively, in positive terms of prohibition. The State
party recalls that Egypt is a State party to the Convention, has a
constitutional prohibition on torture and acts of, or orders to torture, are
serious felonies under Egyptian criminal law.
4.26 For the State party, it is of interest in assessing the complaint
whether the guarantees have been and are being respected. It recalls the
allegations of ill-treatment made by the complainant's mother, and
subsequently by non-governmental organisations, including the mother's
description of his physical condition at her first visit on 23 January 2002.
The State party's Ambassador's visit the same day immediately followed the
mother's visit, and the Ambassador observed no signs of physical abuse. As
observed, he seemed to speak freely, made no complaints about torture, and
in response to a direct question on systematic abuse in prison, made no
claim to that effect. The State party thus argues the allegation of
ill-treatment on that date has been effectively refuted by its Ambassador's
observations.
4.27 The State party asserts that judging from the numerous reports provided
by the Ambassador, embassy staff and the senior official of its Ministry of
Foreign Affairs, the guarantees provided have proved effective vis-à-vis the
complainant. Allegations made by him to the contrary have not been
substantiated, and on numerous occasions, he confirmed to the Swedish
Ambassador that he had not been tortured or ill-treated. The allegations of
March 2003 were refuted by the Egyptian authorities. The complainant
receives the medical care he requires as a result of his health problems,
and legal assistance has been provided to him by his family. That his lawyer
so far may not have taken sufficient action to achieve review of sentence is
of no relevance to the current complaint. In addition, his family visits him
regularly. On the whole, considering the inherent constraints of detention,
the complainant appears to be in fairly good health. The State party
concludes that as the allegations of torture have not been substantiated,
they cannot form the basis of the Committee's assessment of the case. The
State party also points out that the case has been widely reported in
national media and has received international attention. The Egyptian
authorities can be assumed to be aware of this, and are likely to ensure as
a result he is not subjected to ill-treatment.
4.28 The State party recalls that in its decision on the complaint of the
complainant's wife, [FNl] the Committee appeared to make a prognosis for her
in the light of the information about the effectiveness of the guarantees
regarding her husband, the present complainant, to whom she had linked her
case solely on the basis of her relationship to him. The Committee declared
itself "satisfied by the provision of guarantees against abusive treatment"
and noted that they were "regularly monitored by the State party's
authorities in situ." It went on to observe that Egypt "is directly bound
properly to treat prisoners within its jurisdiction." In the State party's
view, therefore, the Committee's conclusion that she had not made out a
breach of article 3 in her complaint is of "essential importance" to the
present complaint.
---------------------------------------------------------------------------------------------------------------------
[FNl] Ibid.
---------------------------------------------------------------------------------------------------------------------
4.29 In conclusion, the State party argues that by obtaining the guarantees
in question from the competent Egyptian official, it lived up to its
commitments under the Convention while at the same time as fulfilling its
obligations under Security Council Resolution 1373. Prior to expelling the
complainant, appropriate guarantees were obtained from the official best
placed to ensure their effectiveness. The guarantees correspond in content
to the requirements of the Special Rapporteur (see paragraph 4.10 above),
while a monitoring mechanism was put into place and has been functioning for
almost two years. Therefore, the complainant has not substantiated his
claims that the guarantees have, in practice, not been respected. Should the
Committee come to another conclusion, the crucial question is what the State
party's Government had reason to believe at the time of the expulsion. As
the complainant has not substantiated his claim under article 3, his removal
to his country of origin was not in breach of that provision.
Counsel's Comments on the State Party's Submissions
5.1 By letter of 21 January 2004, counsel disputed the State party's
submissions both on admissibility and merits. On the State party's arguments
concerning timely submission of the complaint, he argues that it was unclear
for a long period who was entitled to represent the complainant. Counsel
argues that his prior lawyer had been unable to arrange for a power of
attorney to be signed prior to the complainant's rapid removal, and that the
prior lawyer considered his responsibilities at an end once the complainant
had been removed. Counsel argues that once the complainant had been removed
and could not be consulted directly, it was necessary to obtain more
information about his situation, before carefully evaluating, together with
his parents, whether it would be productive to file a complaint on his
behalf. Counsel argues that the circumstances in the complaint brought by
the complainant's wife were "completely different", as she had remained in
Sweden and thus an urgent communication was necessary in order to prevent
removal. In the present case, the complainant had already been expelled, and
there was no urgent need to submit the complaint before a careful evaluation
of its substance. He also points out that the six-month limit for submission
refers only to complaints presented under the European Convention, and that
there is no difficulty in the existence of different treaty regimes. In any
case, counsel argues that the issue of principle before the Committee in
terms of the satisfactory protection afforded by diplomatic assurances is so
important that it should consider the case rather than declare it
inadmissible.
5.2 Counsel denies that the complaint constitutes an abuse of the right of
submission. While conceding that many of the "basic factors" in the cases of
the complainant and his wife are the same and that the circumstances
"coincide to a considerable degree", the current complainant is the
individual at most serious risk of torture. His wife, who by contrast based
her claim simply as a close relative to a person sought for terrorist
activities, is in a subsidiary position facing a less serious risk than her
husband. As a result there are "major differences" between the two cases and
the complaint should thus not be declared inadmissible on this ground.
Counsel also rejects the characterisation of the case as manifestly
ill-founded.
5.3 On the merits, counsel refers, for a general picture of the gross,
flagrant and widespread use of torture by Egyptian authorities to reports of
several human rights organizations. The human rights report of the Swedish
Ministry of Foreign Affairs itself refers to frequent torture by Egyptian
police, especially in terrorism-related investigations. Counsel argues that
the complainant was not involved in any terrorist activities, and rejects
any applicability of Security Council Resolution 1373. In any event, this
resolution could not override other international obligations such as the
Convention. Counsel denies that the complainant participated in terrorist
activities, including through those organisations that the Security Police
claimed he was involved in. In any case, allegations of involvement with
terrorist organisations would only have served to heighten the existing
interest of the Egyptian authorities in the complainant, an individual
convicted of terrorist offences, and this aggravating circumstance
exacerbating the risk of torture should have been considered by the State
party prior to expelling him.
5.4 For counsel, the key issue is not whether a guarantee was given by a
government official, but rather whether it can be implemented and, if so,
how. The guarantee in question was obtained at short notice, vague in its
terms and provided no details on how the guarantees would be given effect
with respect to the complainant; nor did the Egyptian government provide, or
the Swedish authorities request, any such information. Neither did the
Swedish authorities conceive an effective and durable arrangement for
monitoring, conducting the first visit over a month after the complainant's
removal. This arrangement, coming shortly after the Committee had requested
interim measures of protection with respect to the complainant's wife,
appeared to be an ad hoc reaction rather than part of a properly conceived
monitoring plan. Counsel reiterates his criticisms of the effectiveness of
the monitoring arrangements, observing that standard routines in such cases
applied by organisations such as the International Committee of the Red
Cross had not been met. In addition, the Swedish authorities apparently did
not seek to call any medical expertise, particularly after the complainant's
direct allegation of torture in March 2003. Counsel contends that
differences between the complainant's testimony to his parents on one hand,
and to Swedish authorities, unknown to him and accompanied by Egyptian
authorities, on the other, are explicable.
5.5 Counsel criticizes the Committee's decision on the complaint presented
by the complainant's wife, as the information that her husband had suffered
ill-treatment, was based on a variety of sources and could not be dismissed
as unfounded. Counsel disputes the State party's interpretation of the
jurisprudence of the European organs, viewing the content of the current
guarantee and that offered by India in Chahal as "basically the same". He
observes that the Court did not doubt the good faith of the Indian
government, but regarded the fundamental problem as human rights violations
committed at the operational level by the security forces. In the present
case, similarly, even assuming the same good will at the political level on
the part of Egyptian authorities such as the representative with whom the
guarantees were agreed, the reality at the lower operational levels of the
state security services and other authorities with whom the complainant was
in contact is that torture is commonplace. The Aylor-Davis case, by
contrast, is inapposite as the guarantee there was offered by a State the
circumstances of which cannot be compared to those appertaining in Egypt.
5.6 With respect to the State party' statement that the Egyptian authorities
rejected the allegations made by the complainant in March 2003, counsel
observes that any contrary reaction would have been surprising, and that
such refutation does not disprove the complainant's allegation. In counsel's
view, the burden of proof to show ill-treatment did not occur rests with the
State party, with the most effective capacity to present evidence and
conduct appropriate supervision. Counsel submits that the State party has
not discharged this burden.
5.7 While accepting that Egypt is a State party to the Convention, counsel
observes that this formal act is regrettably no guarantee that a State party
will abide by the commitments assumed. As to the prophylactic effect of
media publicity, counsel argues that there was some coverage of the cases of
the complainant and his wife around the time of the former's removal, but
that thereafter interest has been limited. In any case, there is reason to
doubt whether media coverage has any such protective effect, and even where
coverage is intensive, its positive effect may be doubted.
5.8 Counsel submits that if the Committee were to accept guarantees such as
those offered in the present case as sufficient protection against torture,
one could not discount that large scale deportations could take place after
some standard form of assurance provided by States with poor human rights
records. At least in circumstances where there was a limited will and
capability on the part of the removing state appropriately to monitor the
consequences, the results could readily be wide scope for authorities of the
receiving state to engage in and conceal torture and ill-treatment. As a
result, counsel invites the Committee to find that there was (i) a violation
by the State party of article 3 of the Convention at the time of the
complainant's expulsion, in the light both of the information then available
and of subsequent events, and (ii) that he has been subjected to torture
after removal.
Supplementary Submissions by the Parties
6.1 By letter of 20 April 2004, counsel advised that on 18 February 2004,
the complainant met his mother in prison. He informed her that he had been
threatened by interrogation officers that he could be killed or tortured,
and the same day lodged a complaint that he had been tortured. On 19
February 2004, he was transferred to Abu-Zabaal prison some 50 kilometres
from Cairo, against which he protested by hunger strike lasting 17 days. He
was allegedly placed in a small punitive isolation cell measuring 1.5 square
meters in unhygienic conditions, receiving a bottle of water a day. On 8
March 2004, representatives of the Swedish embassy visited him with unknown
results. On 20 March 2004, following unsuccessful attempts by the
complainant's mother to visit him, it was announced that no family visits
would be permitted outside major holidays due to his status as a security
prisoner with special restrictions. On 4 April 2004, he was returned to
Masra Torah prison. On 10 April 2004, a retrial began before the 13th
superior military court on charges of joining and leading an illegal group
or organization and criminal conspiracy, to which the complainant pleaded
not guilty. A representative of Human Rights Watch was admitted, but family,
journalists and representatives of the Swedish embassy were not. The
complainant's lawyer requested an adjournment in order that he could read
the 2000 pages of charging material and prepare a defence. As a result, the
trial was adjourned for three days, with the lawyer permitted only to make
handwritten notes. In counsel's view, this information demonstrates that the
complainant had been tortured in the past, has been threatened therewith and
faces a considerable risk of further torture. It also shows he has been
treated in cruel and inhumane manner as well as denied a fair trial.
6.2 By further letter of 28 April 2004, counsel advised that on 27 April
2004 the complainant had been convicted and sentenced to 25 years'
imprisonment. He also contended that the court rejected a request from the
complainant for a medical examination as he had been tortured in detention.
In counsel's view, the complainant's statement to the court and the court's
rejection of his request constitute a further clear indication that he had
been subjected to torture.
7.1 By submission of 3 May 2004, the State party responded to counsel's
letter of 20 April 2004. The State party advised that since the last
(seventeenth) visit reported to the Committee on 5 December 2003, four
further visits on 17 December 2003, 28 January 2004, 8 March 2004 and 24
March 2004 had taken place. The State party advised that from December 2003
to January 2004, the complainant's situation remained broadly the same, with
him taking up law studies. While complaining that his two cellmates
disturbed peace and quiet required for study, he managed to prepare for
examinations that took place in the facility in January 2004. The reportedly
maximum security Abu-Zabaal facility to which he was transferred was said to
be a more customary facility for prisoners sentenced to long terms. At the
same time, the prison director advised that the complainant had been ordered
to spend 15 days in isolation as a disciplinary sanction for having
attempted to instigate a rebellion amongst Masra Torah inmates. The State
party had obtained separate corroborating evidence that (i) the complainant
had attempted to start a prison riot by "shouting words calling for
disobedience against the instructions and regulation of the prison" and that
(ii) restrictions had been imposed on correspondence and visiting rights,
for a period of three months. The State party observed that the complainant
was found guilty of one of the two offences with which he was charged,
namely having held a leading position in, and being responsible for, the
terrorist organization Islamic Al-Fath Vanguards. He was sentenced to life
imprisonment, hard labour (abolished in 2003) not being imposed. He is
currently in Masra Torah prison awaiting decisions as to future placement.
7.2 The State party maintained its earlier positions with respect to the
admissibility of the complaint, as well as to the merits, that is, that the
complainant has not substantiated his claims that the Egyptian authorities
have not respected the guarantees in practice. It recalled that the crucial
question is what the State party had reason to believe, in light of the
guarantees given, at the time of the expulsion. The State party thus
submitted that it has been in full conformity with its obligations under the
Convention.
8.1 By letter of 3 May 2004, counsel argued that he had initially only been
supplied with a redacted version of the diplomatic report supplied after the
first ambassadorial meeting in 23 January 2002 with the complainant. Counsel
contended that the full report had just been provided to him by a lawyer
representing a third party deported at the same time as the complainant.
Counsel contends that according to this report the complainant informed the
Ambassador that he had been tortured (in the form of beating by prison
guards) and subjected to cruel and degrading treatment (in the form of
blindfolding, solitary confinement in a very small cell, sleep deprivation
and refusal of prescribed medication). Counsel argued that the State party
had not supplied this information to the Committee. Counsel further provided
a report by Human Rights Watch critical of diplomatic assurances in this
context, [FNm] as well as a statement dated 27 April 2004 of the Egyptian
Organization for Human Rights critical of the complainant's retrial.
---------------------------------------------------------------------------------------------------------------------
[FNm] Human Rights Watch: "Empty Promises : Diplomatic Assurances No
Safeguard against Torture",April 2004, Vol.16 No. 4(D).
---------------------------------------------------------------------------------------------------------------------
8.2 By letter of 4 May 2004, counsel provided his translation of the
diplomatic report described. After describing a forced posture during the
air transport to Egypt, the complainant is said to have told the Ambassador
at the first meeting, in the presence of Egyptian officials, that he had
been "forced to be blindfolded during interrogation, kept in too narrow
cells, 1.50 x 1.50 metres during the same period, lack of sleep due to
supervision in cells, a delay of ten days before [he] once gets access to
his anti-gastric drugs (after medical examination), that [he] had been
beaten by prison guards during transport to and from interrogation and
threats from interrogation offices that it could affect his family if he did
not tell everything about his time in Iran". The Ambassador concluded that
he could not evaluate the veracity of these statements, but did not
understand the claim to be of any form of systematic, physical torture.
Counsel viewed this newly-disclosed information as a clear indication that
the complainant had been subjected to torture. Counsel also argued that the
real reason that the complainant had been transferred to the Abu-Zaabal
facility was because he had lodged a complaint of threatened torture. He
also contended that the complainant was denied "real and fair possibilities"
to prepare his defence and observed that the State party did not address
issues arising from the complainant's trial.
8.3 By a further letter of 4 May 2004, counsel provided a statement of the
same day by Human Rights Watch entitled "Suspected Militants Unfair Trial
and Torture Claim Implicate Sweden", in which the complainant's retrial as
well as the State party's monitoring arrangements were criticized. Counsel
also provided a letter to him by a Human Rights Watch researcher purporting
to confirm the contents of the unredacted first diplomatic report described
above and concluding that there were credible allegations of ill-treatment.
8.4 By submission of 5 May 2004, the State party advised that it considered
the Committee to be in a position to take a decision on the admissibility
and, if necessary, the merits of the complaint on the basis of the
Convention and the information before the Committee. Accordingly, it did not
intend to make additional submissions beyond those already made on 3 May
2004. It observed in conclusion that counsel's letter of 4 May 2004 raised,
inter alia, issues falling outside the scope of the Convention.
The Committee's Admissibility Decision:
9.1 At its 32nd session, the Committee considered the admissibility of the
communication. The Committee ascertained, as it was required to do under
article 22, paragraph 5 (a), of the Convention, that the same matter had not
been and was not being examined under another procedure of international
investigation or settlement.
9.2 On the State party's argument that the present complaint was an abuse of
process which rendered it inadmissible, the Committee observed that the
complaint submitted on behalf of the complainant's wife in order to prevent
her removal had necessarily been filed with dispatch, and had concerned, at
least at the time of the Committee's decision, the issue of whether at that
point the circumstances were such that her removal would be a violation of
article 3 of the Convention. In reaching the conclusion that removal of the
complainant's wife would not breach article 3, the Committee had considered
the chronology of events up to the time of its decision, a necessarily wider
enquiry than that at issue in the present case, which was focused upon the
situation of the complainant at the time of his expulsion in December 2001.
Indeed, the Committee had observed in its decision on the original complaint
that it was not being presented with the issue of whether the present
complainant's removal itself breached article 3. The two complaints related
to different persons, one already removed from the State party's
jurisdiction at the time of submission of the complaint and the other still
within its jurisdiction pending removal. In the Committee's view, the
complaints were thus not of an essentially identical nature, and it did not
consider the current complaint to be a simple re-submission of an already
decided issue. While submission of the present complaint with greater
dispatch would have been preferable, the Committee considered that it would
be inappropriate to take so strict a view that would consider the time taken
in obtaining authorization from the complainant's father as so excessively
delayed as amounting to an abuse of process.
9.3 As to the State party inadmissibility argument grounded on Rule 107(f),
the Committee observed that this Rule required the delay in submission to
have made consideration of the case "unduly difficult". In the present case,
the State party had had ready access to the relevant factual submissions and
necessary argumentation, and thus, while the timing of submission of the two
complaints may have been inconvenient, consideration of the present
complaint could not be said to have been made unduly difficult by the lapse
of 18 months from the date of the complainant's expulsion. The Committee
thus rejected the State party's argument that the complaint is inadmissible
on this ground.
9.4 The Committee noted that Egypt has not made the declaration provided for
under article 22 recognizing the Committee's competence to consider
individual complaints against that State party. The Committee observed,
however, that a finding, as requested by the complainant, that torture had
in fact occurred following the complainant's removal to Egypt (see paragraph
5.8), would amount to a conclusion that Egypt, a State party to the
Convention, had breached its obligations under the Convention without it
having had an opportunity to present its position. This separate claim
against Egypt was thus inadmissible ratione personae.
9.5 In terms of the State party's argument that the remaining complaint was
insufficiently substantiated, for purposes of admissibility, the Committee
considered that the complainant had presented a sufficiently arguable case
with respect to Sweden for it to be determined on the merits. In the absence
of any further obstacles to the admissibility of the complaint advanced by
the State party, the Committee accordingly was ready to proceed with the
consideration of the merits.
9.6. Accordingly, the Committee against Torture decided that the complaint
was admissible, in part, as set out in paragraphs 9.2 to 9.5 above.
Supplementary Submissions by the Parties on the Merits of the Complaint
10.1 By letter of 20 August 2004, counsel for the complainant made
additional submissions on the merits of the case, providing additional
details on the complainant's retrial in April 2004. He stated that the
complainant's defence counsel was only provided with copies of parts of the
criminal investigation that had been conducted, despite a request to be able
to photocopy the investigation records. When the trial was resumed on 13
April, the complainant was only able to speak to his counsel for about 15
minutes. The State called a colonel of the State Security Investigation
Sector to testify against the complainant, to the effect that the
complainant had had a leading position since 1980 in the Jamaa group, as
well as links since 1983 with Ayman al Zawahiri, a central figure of the
group. He further testified that the complainant had attended training camps
in Pakistan and Afghanistan, and participated in weapons training sessions.
Upon cross-examination, the colonel stated that the Jamaa leadership
continually changes, that his testimony was based on secret information,
that the sources thereof could not be revealed due to risks to their lives
and that he (the colonel) had had a supplementary role in the investigation
alongside other officers whom he did not know. According to counsel for the
complainant, the court in its verdict of 27 April 2004 rejected the
complainant's request for a forensic medical examination made during the
trial, but referred to a medical examination report by the prison doctor
which indicated that the complainant had suffered injuries in prison.
10.2 Counsel refers to a Swedish television broadcast of 10 May 2004 on
entitled "Kalla Fakta", examining the circumstances of the expulsion of the
complainant and another individual. [FNn] The programme stated that the two
men had been handcuffed when brought to a Stockholm airport, that a private
jet of the United States of America had landed and that the two men were
handed over to a group of special agents by Swedish police. The agents
stripped the clothes from the men's bodies, inserted suppositories of an
unknown nature, placed diapers upon them and dressed them in black overalls.
Their hands and feet were chained to a specially-designed harness, they were
blindfolded and hooded as they were brought to the plane. Mr. Hans Dahlgren,
State Secretary at the Foreign Ministry, stated in an interview that the
Egyptian Government had not complied with the fair trial component of the
guarantees provided.
---------------------------------------------------------------------------------------------------------------------
[FNn] Counsel has supplied a transcript of the programme.
---------------------------------------------------------------------------------------------------------------------
10.3 According to counsel for the complainant, following this programme, the
Swedish Foreign Ministry sent two senior representatives to Egypt to discuss
with the Egyptian Government how the two deportees had been treated. Results
of the meeting are not known apart from an Egyptian denial of maltreatment
and that an investigation under Egyptian leadership, but with international
participation and medical expertise, would be involved. Three separate
investigations in Sweden have also resulted and are ongoing: (i) a proprio
motu investigation by the Chief Ombudsman to determine whether the actions
taken were lawful, (ii) a criminal investigation by the Stockholm public
prosecutor, upon private complaint, on whether Swedish Security Police
committed any crime in connection with the deportation, and (iii) an
investigation by Parliament's Constitutional Committee into the lawfulness
of the Swedish handling of the cases.
10.4 On 15 June 2004, the Aliens Appeals Board granted the complainant's
wife and her five children permanent resident status in Sweden on
humanitarian grounds. Later in June, the Egyptian Government through
prerogative of mercy reduced the complainant's twenty-five year sentence to
fifteen years' of imprisonment. According to counsel for the complainant,
the complainant last met Swedish representatives in July 2004. For the first
time, the meeting was wholly private. After the meeting, he met his mother
and told her that prior to the meeting he had been instructed to be careful
and to watch his tongue, receiving from an officer the warning "don't think
that we don't hear, we have ears and eyes."
10.5 As at 20 August 2004, the date of the submissions, there was no
information as to the announced inquiry in Egypt. [FNo] However, that day,
the Swedish Minister of Foreign Affairs announced in a radio broadcast the
receipt of a Note from the Egyptian government rejecting all allegations of
the complainant's torture and considering an international inquiry
unnecessary and unacceptable. The Minister of Foreign Affairs also
considered there reason to be self-critical concerning the Swedish handling
of the case.
---------------------------------------------------------------------------------------------------------------------
[FNo] Counsel supplies a public statement by Amnesty International, dated 28
May 2004, entitled "Sweden : Concerns over the treatment of deported
Egyptians" calling for an "international, wide-ranging, independent and
impartial investigation " (EUR 42/001/2004), and, to similar effect, a
statement by Human Rights Watch, dated 27 May 2004, entitled "Sweden :
Torture Inquiry Must Be Under U.N. Auspices".
---------------------------------------------------------------------------------------------------------------------
10.6 Counsel submits that the retrial fell patently short of international
standards, being conducted in a military court with limited time and access
available to the defence resulting in a conviction based on weak and
insufficient evidence. [FNp] The failure to respect this portion of the
guarantee, as conceded by State Secretary Dahlgren, raised of itself serious
doubts as to the fulfillment of the remaining commitments. Counsel states
that the complainant told his mother that he is irregularly sent to hospital
for his back damage, there being no indication that he has been examined by
a forensic physician. In counsel's view, the information already made known,
coupled with the finding by the prison doctor that the complainant had
suffered medical injuries (see paragraph 8.1, supra) and the refusal of the
Egyptian authorities to allow an international investigation, together show
that he has been subjected to torture. The burden to prove the contrary must
rest upon the State party, with its commensurately greater resources and
influence upon proceedings.
---------------------------------------------------------------------------------------------------------------------
[FNp] Counsel cites in support the statement by Human Rights Watch, dated 4
May 2004, entitled “Suspected militant’s unfair trial and torture claims
implicate Sweden”. See paragraph 8.3.
---------------------------------------------------------------------------------------------------------------------
10.7 Reiterating his previous arguments, counsel contends that the
complainant faced substantial risks of torture at the time of expulsion
irrespective of the guarantees obtained from a country with a record such as
Egypt. Counsel refers in this connection to a report on Sweden, dated 8 July
2004, of the Council of Europe, where criticism was expressed on the use of
guarantees. [FNq] Alternatively, counsel argues that the steps taken to
prevent and monitor the guarantees were insufficient. In addition to the
arguments already raised, no detailed plans or programs featuring matters
such as special orders on permissible interrogation techniques, confirmation
that subordinate personnel were aware and would adhere to the guarantees or
a post-expulsion treatment and trial plan were implemented.
---------------------------------------------------------------------------------------------------------------------
[FNq] Report by Mr. Alvaro Gil-Robles, Commissioner for Human Rights, on his
Visit to Sweden (21-23 April 2003), CommDH(2004)13, stating, at paragraph
19: "The second point relates to the use of diplomatic assurances regarding
the treatment of deported aliens in the countries to which they are
returned. This example, which is not unique to Sweden, clearly illustrates
the risks of relying on diplomatic assurances. The weakness inherent in the
practice of diplomatic assurances lies in the fact that where there is a
need for such assurances, there is clearly an acknowledged risk of torture
and ill-treatment. Due to the absolute nature of the prohibition of torture
or inhuman or degrading treatment, formal assurances cannot suffice where a
risk nonetheless remains. As the UN Special Rapporteur on Torture has noted,
such assurances must be unequivocal and a system to monitor such assurances
must be in place. When assessing the reliability of diplomatic assurances,
an essential criteria must be that the receiving state does not practice or
condone torture or ill-treatment, and that it exercises effective control
over the acts of non-state agents. In all other circumstances it is highly
questionable whether assurances can be regarded as providing indisputable
safeguards against torture and ill-treatment."
---------------------------------------------------------------------------------------------------------------------
11.1 By submission of 21 September 2004, the State party responded,
observing that further visits since its last submissions of 3 May 2004 took
place on 4 May, 2 June, 14 July and 31 August 2004. Each visit, excepting
the most recent, took place in Masra Torah prison where the complainant
appears to be serving sentence. The most recent visit took place at the
Cairo university hospital. The State party refers to the complainant's
improved legal situation, with the reduction to fifteen years' imprisonment
subject, according to the complainant, to further reduction in the event of
good behaviour. An assessment thereof is conducted automatically by the
Egyptian Ministry for Interior Affairs. The complainant's health situation
has also improved since May when he fell ill with pneumonia. Upon his return
to Masra Torah prison on 4 April 2004, his previous treatments and
medication were resumed. In late August 2004, he underwent surgery at the
Cairo university hospital on spinal discs. The neurosurgeon involved
informed the embassy on 31 August that the operation had taken five hours,
involving microsurgery, but had been successful and without complications.
According to the physician, the back problems were of a type which could
befall anyone and had no apparent cause.
11.2 Concerning general conditions at Masra Torah prison, the complainant
offered embassy staff no particular complaints when asked. Family visits
have resumed upon his return to that prison. He was pleased to be informed
of the permanent residence granted his wife and children, and has continued
with his law studies and exams.
11.3 Following renewed allegations of ill-treatment by the complainant's
counsel, his Egyptian lawyer and NGOs, the State party's Government made
further investigative efforts. On 18 May 2004, it dispatched Ms. Lena
Hjelm-Wallén, former Minister of Foreign Affairs and Deputy Prime Minister,
as special envoy to Egypt, accompanied by the Director General for Legal
Affairs of the Swedish Ministry for Foreign Affairs. The envoy met with the
Egyptian Deputy Minister of Justice and the Minister in charge of the
General Intelligence Service (GIS), voicing the State party's concerns over
the alleged ill-treatment in the first weeks following the complainant's
return to Egypt. She requested an independent and impartial inquiry on the
allegations, including international medical expertise. The Egyptian
Government dismissed the allegations as unfounded, but agreed to undertake
an investigation. Subsequently, on 1 June 2004, the Swedish Minister of
Foreign Affairs dispatched a letter to the Egyptian Minister in charge of
the GIS, suggesting that in order for the Egyptian investigation to receive
the widest possible international acceptance, it should be carried out with
or by an independent authority, involving the judiciary and medical
expertise, and preferably international expertise with recognized expertise
in investigation of torture. She also professed willingness to allow a
Swedish official, such as senior police officer or prosecutor, to assist.
She added that it was crucial that the fight against terrorism be carried
out with full respect for the rule of law and in conformity with
international human rights obligations. In his answer of late July 2004, the
responsible Egyptian Minister refuted the allegations of ill-treatment as
unfounded, referring without detail to Egyptian investigations. While
confirming the reduction of the complainant's sentence, he gave no direct
answer to the Swedish request for an independent investigation.
11.4 The State party states that its Government is not content with the
Egyptian response. In the process of considering possible further action, it
is of the utmost importance that the Government receives a confirmation that
such action will be in line with the complainant's own wishes, as further
measures should not risk affecting his legal interests, safety or welfare
adversely in any way. It is also necessary, in the circumstances, for the
Egyptian Government to concur and co-operate in any further investigative
efforts.
11.5 The State party reiterated its previous submissions based on a
deficient retrial are outside the scope of the present case, concerned with
whether the complainant's return to Egypt was in breach of the absolute ban
on torture. It reiterates that the complainant has not substantiated his
claim that he was ill-treated following return, and, thus, that the
guarantees provided were not respected. The State party recalls that the
crucial issue for decision is what its Government, in view of the guarantees
received, had reason to believe at the time of the expulsion. Accordingly,
the State party has complied with its obligations under the Convention,
including article 3.
11.6 By letter of 16 October 2004, counsel responded to the State party's
supplementary submissions, pointing out that the circumstances of the four
visits from May to August 2004 described by the State party remained unclear
but that it is likely that Egyptian officials were present and it would be
difficult to speak freely. The situation may have been different for the
hospital visit. Counsel criticises the State party for stating that it
appeared that Masra Torah prison was the detention facility for sentence,
arguing that as it is well known that the complainant was serving sentence
at the Esquebahl Torah prison, the State party appeared to be ill-informed
on the circumstances of his detention.
11.7 Counsel observes argues that the complainant's back condition was
already diagnosed, as moderate, in Sweden. These problems deteriorated after
his return and in 2003 he was brought to a Cairo hospital for examination,
where he was recommended for surgery. Only a year later was "absolutely
necessary" surgery actually carried out. He stayed for eleven days in
hospital under supervision and received controlled visits from family.
Although far from recovered, he was then returned to prison in an ordinary
transport vehicle rather than an ambulance. Counsel argues that the State
party knew of but neglected to tend to the complainant's medical condition
for two and a half years, and in that time exposed him to treatment such as
being kept in "very small" cells and with arms being tied behind the back.
Apart from itself causing severe pain, such treatment seriously risked
exacerbating his medical condition.
11.8 Counsel argues that the reduction in sentence does not affect how the
complainant has been treated, is being and will be treated until release. As
to law studies, it is not known whether and how the complainant has been
able to pass any exams. Counsel rejects that there has been a significant
improvement of the complainant's situation during the summer of 2004,
conceding only that the situation is an improvement on that just after his
return, arguing that as late as March 2004 the complainant was detained in a
very small cell without adequate hygiene facilities and proper access to
water. There remains a considerable risk the complainant will be subjected
to torture or treatment approximating it. In any event, counsel argues that
the complainant's present condition does not establish how he was treated in
the past.
11.9 Counsel points out that the complainant's Egyptian attorney has lodged
a request for review of verdict to the Highest State Security Court, on
grounds that the trial Military Court misjudged the evidence, that the
preliminary investigation was afflicted with serious shortcomings, that
defence rights were violated at trial and that during the investigation the
complainant had been subjected to violence and torture. The attorney has
also lodged a special complaint with the Egyptian Minister of the Interior,
the Chief Public Prosecutor and the Director-General of the Prison
Institutions, alleging improper treatment of the complainant during his
hospitalisation, including being chained to the bed and rendered immobile on
medical grounds, and being returned to prison prior to recuperation.
11.10 Counsel argues that after the publicity generated by the television
broadcast referred to in paragraph 10.2, supra, the State party shifted its
position from a firm denial that torture had taken place to the "more
reluctant position" shown by the measures it then took by way of dialogue
with Egypt. Counsel points out Egypt's curt dismissal as unfounded of the
allegations giving rise to the Swedish requests for an investigation,
without so much as supplying any detail of the investigation allegedly
conducted. This strongly suggests the complainant was in fact tortured, as
Egypt would benefit significantly from being able to demonstrate to other
countries, through an independent investigation showing the complainant had
not been tortured, that Egypt could safely be entrusted with the return of
sensitive prisoners and to abide by assurances given.
11.11 Counsel refers to the State party's apparent unwillingness to further
press the Egyptian authorities, with the State party citing possible
prejudices to the complainant's legal interests or welfare. This suggests
the State party accepts, in contrast to its earlier view, that the
complainant is at risk of external pressure in the event of an insistence on
an independent investigation. In fact, the complainant, through his
relatives, has repeatedly made known his desire for the fullest possible
defence of his interests.
11.12 Counsel goes on to refer to relevant case law in national
jurisdictions. In the case of Mr. Bilasi-Ashri, the Egyptian government
refused to accept a detailed set of assurances, including post-return
monitoring, requested by the Austrian Minister of Justice following a
decision to that effect by an Austrian court of appeal. In the case of Ahmed
Zakaev, a British extradition court found that a real risk of torture was
not discounted by assurances given in open court by a Russian deputy
minister overseeing prisons. Counsel argues that a similarly rigorous
approach, with effective protection provided by the legal system, ought to
have been followed in the complainant's case.
11.13 Counsel expands on the earlier reference to involvement of the United
States of America in the complainant's case in paragraph 10.2, supra,
referring to a book entitled "Chain of Command" by Seymour Hersh. This
contended that "the Bromma action" (referring to the airport from which the
complainant was removed) was carried out by members of the Special Access
Program of the United States Department of Defense who were engaged in
returning terrorist suspects to their countries of origin utilising
"unconventional methods". It is said that the complainant's removal was one
of the first operations carried out under this program and described by an
operative involved as "one of the less successful ones". In counsel's view,
this third State involvement at the removal stage in an anti-terrorism
context should have confirmed what the State party already knew from its
knowledge of the common use of torture in Egypt and the complainant's
particular vulnerability, that is, that a real risk of torture existed at
the time of his removal, in breach of article 3.
11.14 By further letter of 16 November 2004, counsel provided a copy of a
Human Rights Watch report to the Committee entitled "Recent Concerns
regarding the Growing Use of Diplomatic Assurances as an Alleged Safeguard
against Torture". The report surveys recent examples of State practice in
the area of diplomatic assurances by Germany, the United States of America,
the Netherlands, the United Kingdom and Canada. The report argues that such
assurances are increasingly viewed as a way of escaping the absolute
character of non-refoulement obligations, and are expanding from the
anti-terrorism context into the area of refugee claims. It contends that
assurances tend to be sought only from countries where torture is a serious
and systematic problem, which thus acknowledges the real risk of torture
presented in such cases.
11.15 In the light of national experience, the report concludes that
assurances are not an adequate safeguard for a variety of reasons. Human
rights protection is not amenable to diplomacy, with its tendency to
untransparent process and to place the State to State relationship as the
primary consideration. Such assurances amount to trusting a systematic
abuser who otherwise cannot be trusted to abide by its international
obligations. It also amounts to giving a systematic abuser a "pass" with
respect to an individual case when torture is otherwise widespread. Finally,
the effectiveness of post-return monitoring is limited by the
undetectability of much professionally-inflicted torture, the absence of
medical expertise from typical monitoring arrangements, the unwillingness of
torture victims to speak out for fear of retribution, and the unwillingness
of either the sending State or the receiving State to accept any
responsibility for exposing an individual to torture.
11.16 In conclusion, the report refers to the October 2004 report to the
General Assembly of the United Nations Special Rapporteur on Torture, who
argued that, as a baseline, diplomatic assurances should not be resorted to
in circumstances where torture is systematic, and that if a person is a
member of a specific group that is routinely targeted and tortured, this
factor must be taken into account. In the absence of either of these
factors, the Special Rapporteur did not rule out the use of assurances
provided that they reflect an unequivocal guarantee that is meaningful and
verifiable.
12.1 By letter of 11 March 2005, the State party provided additional
submissions on the merits of the complaint. It observed that the Swedish
embassy in Cairo had continued to monitor the complainant's situation, with
further visits taking place in Toraj prison on 3 October 2004, 21 November
2004, 17 January 2005 and 2 March 2005. The State party notes for the sake
of clarity that there are several buildings on the prison grounds, one of
which is called Masra and another Estekbal. The complainant has been
detained, and visits have taken place, in both parts of the prison compound
at different points in time.
12.2 With respect to his legal situation, the complainant stated that he had
instructed his Egyptian lawyer to lodge a petition with the President of
Egypt for a new trial in a civil court, invoking Egypt's undertaking prior
to his expulsion from Sweden that he was to be given a fair trial. He had
not met with the lawyer in person; his mother appeared to be the one giving
instructions to the lawyer. According to the complainant, she had
subsequently been informed by the lawyer that the petition had been lodged.
However, the complainant was not very hopeful with regard to the outcome of
such a petition.
12.3 Concerning the health situation, the complainant was recovering
according to plan from the back surgery he underwent in August 2004 at the
university hospital in central Cairo. Back at the Torah prison, he had spent
some time in the prison hospital before returning to a normal cell. He had
received physiotherapy treatment and a so-called MRI-examination, where his
back had been x-rayed. He complained about the lack of further physiotherapy
sessions which, he stated, had to be held at the hospital. This was due to
the fact that the necessary equipment was not available in the prison. In
order to further strengthen his back, he had been scheduled for special
magnetic treatment.
12.4 With regard to the issue of the general conditions of detention, the
State party observes that by March 2005 the complainant was placed in a cell
of his own. He continued to receive visits from his mother, who brought him
books, clothes and extra food. She also appeared to be providing him with
information about his family in Sweden on a regular basis. However, he
complained that his request to call his wife and children had been denied.
Moreover, it was his intention to continue with his law studies. He had
managed to pass further exams during the autumn.
12.5 In addition to the measures described in its last submissions to the
Committee on 21 September 2004, the State party states that it had made
further efforts to bring about an investigation into the ill-treatment
allegedly suffered by the complainant at the hands of the Egyptian
authorities during the initial stage of the detention. In a new letter of 29
September 2004 to the Egyptian Minister in charge of the GIS, the Swedish
Minister of Foreign Affairs, Ms. Laila Freivalds, responded to the answer
given by him in July of that year. Ms. Freivalds remarked that the letter
she had received in July 2004 contained no information on the type of
investigations that had been carried out by the Egyptian authorities and on
which the Egyptian Minister's conclusions were based. She concluded, in her
turn, that under the circumstances she did not exclude that she would have
to revert to him on the same matter at a later stage.
12.6 In the course of the Swedish embassy's visit to the complainant on 3
October 2004, the question of the complainant's position in respect of
further inquiries into the allegations of ill-treatment was raised again.
When the issue had been raised with him for the first time (during the visit
of 14 July 2004), the complainant's prison sentence had recently been
reduced to 15 years and he was concerned that new investigations might have
a negative impact on the chances of further reductions being made as a
consequence of good behaviour on his part. On 3 October 2004, however, the
complainant's position had changed. He then declared that he was in favour
of an independent inquiry and said that he was willing to contribute to such
an inquiry.
12.7 In view of the importance attached by the State party to the
complainant's own wishes in this regard, the State party regarded the
complainant's new position as making way for further measures on its part.
Since the envisaged inquiry would naturally require the additional approval
and cooperation of the Egyptian government, the Swedish Ambassador to Egypt
was instructed on 26 October 2004 to raise this issue with the Egyptian
Foreign Ministry at the highest possible level. The Ambassador consequently
met with the Egyptian Minister of Foreign Affairs on 1 November 2004. The
Ambassador conveyed the message that the Swedish Government continued to be
concerned about the allegations that the complainant had been exposed to
torture and other ill-treatment during the initial period following his
return to Egypt. The need for a thorough, independent and impartial
examination of the allegations, in accordance with the principle of the rule
of law and in a manner that was acceptable to the international community,
was stressed by the Ambassador. In response, the latter was informed of the
Minister's intention to discuss the matter with the Minister in charge of
the GIS. The Egyptian Minister of Foreign Affairs, however, anticipated two
problems with regard to an international inquiry. Firstly, there was no
tradition in Egypt when it came to inviting representatives of the
international community to investigate domestic matters of this character.
It would probably be viewed as an unwelcomed interference with internal
affairs. Secondly, attempting to prove that ill-treatment had not occurred
could pose a problem of a more technical nature, particularly in view of the
fact that several years had passed since the ill-treatment allegedly took
place.
12.8 As a follow-up to the meeting with the Minister of Foreign Affairs, the
State party informs that its Ambassador met with the Undersecretary of State
of the GIS on 22 November and 21 December 2004. During the first of these
meetings, the undersecretary of state mentioned that Egypt was anxious to
comply, as far as possible, with the Swedish Government's request for an
inquiry. However, during the second meeting, the Ambassador was handed a
letter by the Minister in charge of the GIS containing the Egyptian
government's formal answer to the renewed Swedish request for an inquiry.
The content of the letter was similar to that of the previous letter from
the same Minister in July 2004. Thus, the allegations concerning
ill-treatment of the complainant were again refuted as unfounded.
Furthermore, no direct answer was provided to the request that an
independent inquiry be conducted.
12.9 The matter was again brought up by Ms. Freivalds in connection with a
visit to Stockholm on 15 February 2005 by the Egyptian Deputy Minister of
Foreign Affairs responsible for multilateral issues. Ms. Freivalds informed
the Egyptian Deputy Minister of the complainant's case and the allegations
made regarding his ill-treatment. She stressed that it ought to be a common
interest for Sweden and Egypt to look into those allegations and asked the
Deputy Minister to use his influence with the Egyptian authorities in favour
of the Swedish position. The Deputy Minister assured her that he would raise
the issue upon his return to Cairo.
12.10 The State party also points out that the issue of an international
inquiry was raised with the United Nations High Commissioner for Human
Rights, Ms. Louise Arbour, when she visited Stockholm in December 2004. On
that occasion, Ms. Freivalds made clear that the Swedish Government would
welcome any efforts that might be undertaken by the High Commissioner to
investigate the allegations that the complainant had been subjected to
torture or other forms of ill-treatment while in detention in Egypt. The
State party also observes that the investigation initiated by the Swedish
Chief Parliamentary Ombudsman into the circumstances surrounding the
execution of the Government's decision to expel the complainant from Sweden
has not yet concluded.
12.11 The State party recalls that already in May 2004, counsel for the
complainant provided the Committee with a written account of the embassy's
report of its first visit on 23 January 2002 to the complainant after his
return to Egypt. A copy of the report was submitted by counsel to the
Committee in August 2004. In the State party's view, therefore, the
Committee had thus been provided with all the information of relevance for
its examination of the present case. Prior to explaining the fact that the
report was not fully accounted for by the Government in its initial
observations of 5 December 2003, the State party provides the following
translation of the relevant portion of the Ambassador's report:
"Agiza and [name of another person] had just been transferred to the Torah
prison after having been interrogated for thirty days at the security
service's facilities in another part of Cairo. Their treatment in the Torah
prison was "excellent". However, they had a number of complaints that
related to the time period between their apprehension in Sweden and the
transfer to the Torah: excessive brutality on the part of the Swedish police
when they were apprehended; forced to remain in uncomfortable positions in
the airplane during the transport to Egypt; forced to be blindfolded during
the interrogation period; detention in too small cells 1.5 x 1.5 meters
during the same period; lack of sleep due to surveillance in the cells; a
delay of ten days before Agiza, following a medical examination, had access
again to his medication for gastric ulcer; blows from guards while
transported to and from interrogation; threats from interrogator that there
could be consequences for Agiza's family if he did not tell everything about
his time in Iran etc. It is not possible for me to assess the veracity of
these claims. However, I am able to note that the two men did not, not even
on my direct questions, in any way claim that they had been subjected to any
kind of systematic, physical torture and that they consider themselves to be
well treated in the Torah prison."
12.12 The State party argues that it has been aware of difficulties
experienced by the Committee in the past with regard to upholding respect
for the confidentiality of its proceedings. For that reason, the State party
formulated its submissions with great care when they involved the unveiling
of information that has been classified under the Swedish Secrecy Act. For
the State party, it was a question of balancing the need to reveal
information in order to provide the Committee with the correct factual basis
for the proper administration of justice, on the one hand, and the need to
protect the integrity of Sweden's relations with foreign powers, the
interests of national security and the security and safety of individuals,
on the other.
12.13 The State party argues that its position in this regard should be seen
against the background of the experience gained from the proceedings
relating to the case of Hanan Attia. [FNr] In the State party's view, it
became clear during those proceedings that the concerns in respect of
confidentiality, which existed already at that time, were not unfounded. In
that case, the Committee offered the State party in September 2002 the
opportunity to withdraw its initial observations of 8 March 2002 and to
submit a new version in view of the fact that the Committee could not
guarantee that "any of the information submitted by the parties to the case
would not be disclosed in any of its decisions or views on the merits of the
case". Furthermore, in January 2003 counsel for Hanan Attia appended a
briefing note from Amnesty International in London to his own observations,
from which it was clear that counsel had made the State party's observations
of 8 March 2002 available to Amnesty International.
---------------------------------------------------------------------------------------------------------------------
[FNr] Communication No. 199/2002, op. cit.
---------------------------------------------------------------------------------------------------------------------
12.14 The State party argues that its concerns with regard to the
Committee's ability to uphold respect for the confidentiality of its
proceedings were reflected in its repeated requests and comments concerning
the confidentiality of the information that was in fact included in the
initial observations of 5 December 2003 in the present case. However, in the
light of the foregoing, the conclusion was drawn that only part of the
classified information found in the Security Police's written opinion of 30
October 2001 to the Migration Board could be revealed. Another conclusion
was that the information contained in the embassy's report from its first
visit on 23 January 2002 to the complainant in detention should not be fully
accounted for either. The reason for the latter conclusion was that it could
not be ruled out that the information concerning ill-treatment provided by
the complainant during the embassy's first visit would later be found in the
public domain and thus become known to the Egyptian authorities.
12.15 The State party concludes that for these reasons not all the
information that emerged at the embassy's first visit was revealed to the
Committee. If such unconfirmed information had been released at that stage,
and with the indirect assistance of the Swedish Government, this could have
resulted in reprisals against the complainant. The risk for reprisals was
not deemed to be insignificant, irrespective of whether the information was
correct or not. If the information regarding the complainant's ill-treatment
was correct - although such treatment did not appear to amount to torture
within the meaning of the Convention -, this would have meant that the
diplomatic assurances had not had the intended effect to protect him against
treatment in breach of Sweden's international obligations, including
treatment prohibited under article 3 of the European Convention on Human
Rights. In such a case, there was an apparent risk that the disclosure of
the information would put the complainant at risk of further ill-treatment
and maybe even of torture. On the other hand, if the disclosed information
was incorrect, this could have had a negative impact on the relations
between Sweden and Egypt. In turn, it could have led to problems as far as
the embassy's monitoring efforts were concerned. In this situation, when the
different risks involved were assessed, the conclusion was reached that the
best course of action would be to await the report of the embassy's next
visit.
12.16 The State party points out that according to the embassy's report from
its second meeting with the complainant in the detention facility, there
were at that time no indications of torture or other ill-treatment. However,
even prior to the third visit on 14 April 2002, information was circulating
to the effect that the complainant's mother had stated publicly that her son
had been tortured after his return to Egypt. The embassy's report from the
first visit on 23 January 2002 confirmed the information submitted by the
complainant's mother, namely that the visit when she had allegedly noticed
signs of ill-treatment on her son's body had been interrupted by the Swedish
Ambassador's first visit. The fact that the Ambassador had reported that he
had not been able to see any signs of physical abuse on that very same day
led the State party to doubt the veracity of the claims made by the
complainant's mother and affected its assessment of the credibility of the
complainant's own information to the Ambassador the same day.
12.17 The State party observes that there was no new information from the
complainant regarding ill-treatment during the following year and the view
that the information submitted during the embassy's first visit had been
incorrect gradually gained in strength. It was essential that the embassy's
opportunities to carry out the monitoring on a regular basis were not
hampered, which could have been the result if the State party had forwarded
unconfirmed or incorrect information to the Committee already during the
first months of 2002. Considering the situation in April 2002 when the
contents of a letter by the complainant's mother became known, it was
therefore, on balance, not deemed appropriate to supplement, at that time,
the information already submitted by the State party regarding the embassy's
first visit in its observations of 8 March 2002.
12.18 A different assessment was made by the State party when the
complainant, on 5 March 2003, repeated his complaints about ill-treatment at
the hands of the Egyptian authorities during the initial stages of his
detention. The allegations were much more serious this time and included
claims that he had been subjected to torture involving the use of
electricity. The mere fact that the complainant came back more than a year
later to what had allegedly occurred already at the beginning of the
detention period contributed to the fact that a different assessment was
made in March 2003. The allegations of torture were therefore immediately
raised with representatives of the relevant Egyptian authorities, who
refuted them categorically. The State party accounted for the information
submitted by the complainant, and the Egyptian authorities' reactions to it,
in its submissions to the Committee of 26 March 2003. It should be
reiterated that the information in issue was considerably more serious than
that provided by the complainant a year earlier and that it concerned the
same time period.
12.19 The State party further contends that by March 2003 the reasons for
confidentiality were not as weighty as before. Even if the information from
the embassy's tenth visit on 5 March 2003 would have ended up in the public
domain despite the fact that the proceedings before the Committee were
confidential according to the applicable provisions in the Convention and
the Committee's own rules of procedure, the damaging effects were no longer
considered to be as serious as before. Following the State party's initial
submissions to the Committee, information had already been in circulation
that - if correct - amounted to a breach on the part of Egypt of the
diplomatic assurances. Moreover, the issue of torture had already been
raised with the Egyptian authorities in March 2003. Furthermore, the
monitoring carried out by the embassy had been going on for more than a year
by that time and had become routine for both the Egyptian authorities, the
embassy and the complainant himself. It was thus no longer likely that there
would be a negative impact on the monitoring so that it would be more
difficult in the future to ensure the continued effectiveness of the
assurances. The State party also stresses that the allegations made by the
complainant during the first embassy visit did not amount, in its view, to
torture within the meaning of the Convention. It is, however, clear that the
ill-treatment complained of at that time would have amounted to inhuman and
maybe also cruel treatment, had the allegations been substantiated.
12.20 The State party refers the Committee to the recent decision of the
Grand Chamber of the European Court on Human Rights, on 4 February 2005, in
the case of Mamatkulov et al. v. Turkey. This case concerned the applicants'
extradition in March 1999 to Uzbekistan under a bilateral treaty with
Turkey. Both applicants had been suspected of homicide, causing injuries to
others by the explosion of a bomb in Uzbekistan and an attempted terrorist
attack on the President of Uzbekistan. Following their extradition, they
were found guilty of various offences and sentenced to twenty and eleven
years' imprisonment respectively.
12.21 Before the European Court, the applicants claimed that Turkey had
violated inter alia article 3 of the European Convention. In defence, Turkey
invoked assurances concerning the two applicants given by the Uzbek
authorities. According to those assurances, which were provided by the
public prosecutor of the Republic of Uzbekistan, the applicants would not be
subjected to acts of torture or sentenced to capital punishment. The
assurances also contained the information that Uzbekistan was a party to the
Convention against Torture and accepted and reaffirmed its obligation to
comply with the requirements of the provisions of the Convention "as regards
both Turkey and the international community as a whole". Officials from the
Turkish embassy in Tashkent had visited the applicants in their respective
places of detention in October 2001. They were reportedly in good health and
had not complained about their prison conditions. Turkey also invoked
medical certificates drawn up by military doctors in the prisons where the
applicants were held.
12.22 The State party observes that the European Court assessed the
existence of the risk primarily with reference to those facts which were
known or ought to have been known to the State party at the time of the
extradition, with information coming to light subsequent to the extradition
potentially being of value in confirming or refuting the appreciation that
had been made by the State party of the well-foundedness or otherwise of a
complainant's fears. The Court concluded that it had to assess Turkey's
responsibility under article 3 by reference to the situation that obtained
on the date of the applicants' extradition, i.e. on 27 March 1999. While
taking note of reports of international human-rights organisations
denouncing an administrative practice of torture and other forms of
ill-treatment of political dissidents and the Uzbek regime's repressive
policy towards such dissidents, the Court furthermore stated that, although
those findings described the general situation in Uzbekistan, they did not
support the specific allegations made by the applicants in the case and
required corroboration by other evidence. Against the background of the
assurances obtained by Turkey and the medical reports from the doctors in
the Uzbek prisons in which the applicants were held, the Court found that it
was not able to conclude that substantial grounds existed at the relevant
date for believing that the applicants faced a real risk of treatment
proscribed by article 3 of the European Convention.
12.23 The State party invites the Committee to adopt the same approach. It
points out that assurances similar to those in the case before the European
Court were indeed obtained by the Swedish Government in the instant case.
Although the guarantees given in this case did not refer to Egypt's
obligations under the Convention against Torture, this is of no particular
consequence since Egypt, like Uzbekistan, is in fact bound by the
Convention. It is doubtful whether the value of assurances should be
considered to be increased simply because they include a reference to a
state's human rights obligations. The important factor must be that the
State in issue has actually undertaken to abide by the provisions of a human
rights convention by becoming party to it. The fact that Egypt was a party
to the Convention against Torture was known to the State party when it
obtained the diplomatic assurances in this case and subsequently decided to
expel the complainant.
12.24 The State party goes on to argue that the assurances obtained in the
present case must be regarded as carrying even more weight than those in the
case against Turkey since they were issued by the person in charge of the
Egyptian security service. It is difficult to conceive of a person better
placed in Egypt to ensure that the diplomatic guarantees would actually have
the intended effect, namely to protect the complainant against treatment in
breach of Sweden's obligations under several human-rights instruments.
12.25 The State party acknowledges that no medical certificates have been
invoked in the present case. However, the medical certificates obtained in
the Turkish case had been issued by Uzbek military doctors working in the
prisons where the applicants in that case were detained. In the State
party's view, such certificates are of limited value in view of the fact
that they had not been issued by experts who could be perceived as truly
independent in relation to the relevant state authorities. Moreover, in the
current case, the absence of corresponding medical certificates must
reasonably be compensated by the monitoring mechanism put in place by the
Swedish Government. To this date, almost thirty visits to the complainant in
detention have been made by its embassy in Cairo. The visits have taken
place over a period of time that amounts to over three years. This should be
compared to the single visit by two officials from the Turkish embassy in
Tashkent more than two and a half years after the extradition of the
applicants in the case examined by the European Court.
12.26 By letter of 7 April 2005, counsel for the complainant made further
submissions. As to his medical care, counsel argues that treatment following
the complainant's surgery in August 2004 was interrupted prior to full
recovery, and he was denied medical treatment in the form of micro-electric
stimulation that he required.
12.27 Counsel observes that in December 2004 and January 2005, the expulsion
of the complainant and a companion case was debated in the Swedish
parliament and media. The Prime Minister and the Minister of Immigration
stated that the expellees were terrorists and their removal was necessary to
prevent further attacks and deny safe haven. According to counsel, these
statements were presented to the complainant by Egyptian officials during an
interrogation. For counsel, this demonstrates that the Egyptian security
services are still interrogating the complainant and seeking to extract
information, exposing him to ongoing risk of torture.
12.28 Counsel provides the conclusions (in Swedish with official English
summary) dated 22 March 2005 of the investigations of the Parliamentary
Ombudsman into the circumstances of deportation from Sweden to Cairo, with
an emphasis on the treatment of the expellees at Bromma Airport. According
to the Ombudsman's summary, a few days prior to 18 December 2001 the Central
Intelligence Agency offered the Swedish Security Police the use of an
aircraft for direct expulsion to Egypt. The Security Police, after
apparently informing the Minister of Foreign Affairs, accepted. At mid-day
December 18, the Security Police was informed that American security
personnel would be onboard the aircraft and they wished to perform a
security check on the expellees. It was arranged for the check to be
conducted in a police station at Bromma airport in Stockholm.
12.29 Immediately after the Government's decision in the afternoon of
December 18, the expellees were apprehended by Swedish police and
subsequently transported to Bromma airport. The American aircraft landed
shortly before 9.00 p.m. A number of American security personnel, wearing
masks, conducted the security check, which consisted of at least the
following elements. The expellees had their clothes cut up and removed with
a pair of scissors, their bodies were searched, their hands and feet were
fettered, they were dressed in overalls and their heads were covered with
loosely fitted hoods. Finally, they were taken, with bare feet, to the
airplane where they were strapped to mattresses. They were kept in this
position during the entire flight to Egypt. It had been alleged that the
expellees were also given a sedative per rectum, which the Ombudsman was
unable to substantiate during the investigation. The Ombudsman found that
the Security Police had remained passive throughout the procedure. The
Ombudsman considered that, given that the American offer was received only
three months after the events of 11 September 2001, the Security Police
could have been expected to inquire whether the American offer involved any
special arrangements with regard to security. No such inquiry was made, not
even when the Security Police had been informed of the fact that American
security personnel would be present and wished to perform a security check.
When the actual content of the security check became obvious as it was
performed at Bromma airport, the attending Swedish police personnel remained
passive.
12.30 In the Ombudsman's view, the investigation disclosed that the Swedish
Security Police lost control of the situation at the airport and during the
transport to Egypt. The American security personnel took charge and were
allowed to perform the security check on their own. Such total surrender of
power to exercise public authority on Swedish territory was, according to
the Ombudsman, clearly contrary to Swedish law. In addition, at least some
of the coercive measures taken during the security check were not in
conformity with Swedish law. Moreover, the treatment of the expellees, taken
as a whole, must be considered to have been inhuman and thus unacceptable
and may amount to degrading treatment within the meaning of Article 3 of the
European Convention for the Protection of Human Rights and Fundamental
Freedoms. The Ombudsman emphasized that the inhuman treatment to which the
expellees were subjected could not be tolerated. The Security Police should
have decided to discontinue the expulsion proceedings and deserved severe
criticism for its handling of the case.
12.31 Counsel observes that the Ombudsman declined to bring charges against
any individuals, as it was not possible to hold any individual to account
before a court. Counsel contends that, at least, the prolonged hooding
amounted to torture, and that what occurred on the aircraft could also be
fomally imputed to Sweden. Counsel argues that in the prevailing atmosphere
the State party ought to have been sceptical of American motives in offering
to transport the expellees to Egypt and been reluctant to accept the
Egyptian guarantees provided.
12.32 By letter of 12 April 2005, the State party also provided the summary
of the Ombudsman's report, as "background information in full understanding
that the execution of the Government's decision to expel the complainant
from Sweden is not part of the case now pending before the Committee, which
deals with the issue of the diplomatic assurances by Egypt with regard to
the complainant."
12.33 By letter of 21 April 2005, counsel for the complainant submitted
final remarks. He criticizes the modalities of the State party's most recent
visits on the same basis as the earlier visits. As to medical care, the
complainant has been re-examined twice at the facility that performed the
2004 surgery and may require further surgery. Concerning the proposed
international investigation, counsel argues that the only reason for Egypt's
refusal to co-operate lies in its breach of the guarantees provided.
12.34 Counsel rejects the State party's reasons for concealing part of the
initial Ambassadorial report from the Committee, arguing that they can only
be relevant to protect the complainant from Egyptian reprisals concerning
his outspokenness as to the torture suffered. The complainant's statement
was made in the presence of the prison warden and other officials, and the
Ambassador raised the issue with the Ministry of Foreign Affairs. In any
event, having already endured reprisals, there was nothing left for the
State party to protect against in withholding information. Mistreatment of
the author was already in the public domain through the complainant's mother
and Amnesty International shortly after January 2002. Counsel argues that
the State party's position also reflects "weak confidence" in the integrity
of the Egyptian guarantees. Counsel also questions how national security
could be affected by public knowledge of the complainant's allegations. In
sum, the only plausible reason to conceal the information was to avoid
inconvenience and embarrassment on the part of the State party.
12.35 Concerning his transmittal of information supplied in the context of
the article 22 process to non-governmental organisations, counsel argues
that at the time he saw no obstacle to doing so, neither the Convention nor
the Committee's Rules proscribing, in his view, such a course. He did not
intend to disseminate the information to the media or the broader public.
Following the Committee's advice that complaint information was
confidential, counsel argues his capacity to defend the complainant was
significantly reduced, particularly given the disparity of resources
available to the State party. In any event, the State party has shared other
confidential intelligence information with the Committee, belaying its
concerns that sensitive information would be inappropriately disseminated.
Counsel argues that the conduct described is, contrary to the Ambassador's
characterisation, torture as understood by the Committee, bearing in mind
that the complainant may have been reluctant to disclose the totality of
circumstances to the Ambassador and that more severe elements emerged
through the testimony of his mother.
12.36 With respect to the European Court's decision in Mamatkulov et al.,
counsel seeks to distinguish the instant case. He emphasises however that in
both cases the speed with which the removal was undertaken denied an
effective exercise of a complaint mechanism, a circumstances that for the
European Court disclosed a violation of article 34 of the European
Convention. In counsel's view, the Mamatkulov Court was unable to find a
violation of article 3 of the European Convention as, in contrast to the
present case, there was insufficient evidence before the Court. A further
distinction is that the treatment at the point of expulsion clearly pointed,
in the current case, to the future risk of torture. Given the prophylactic
purpose of article 3, it cannot be correct that an expelling State simply
transfers, through the vehicle of diplomatic assurances, responsibility for
an expellee's condition to the receiving State.
12.37 Finally, counsel supplies to the Committee a report, dated 15
April2005, by Human Rights Watch, entitled "Still at Risk : Diplomatic
Assurances no Safeguard against Torture", surveying the contemporary case
law and experiences of diplomatic assurances and concluding that the latter
are not effective instruments of risk mitigation in an article 3 context.
Concerning the current case, Human Rights Watch argues that "there is
credible, and in some instances overwhelming, evidence that the assurances
were breached" (at 59).
Issues and Proceedings Before the Committee
Consideration of the Merits
13.1 The Committee has considered the merits of the complaint, in the light
of all information presented to it by the parties, pursuant to article 22,
paragraph 4, of the Convention. The Committee acknowledges that measures
taken to fight terrorism, including denial of safe haven, deriving from
binding Security Council Resolutions are both legitimate and important.
Their execution, however, must be carried out with full respect to the
applicable rules of international law, including the provisions of the
Convention, as affirmed repeatedly by the Security Council. [FNs]
--------------------------------------------------------------------------------------------------------------------
[FNs] Security Council Resolution 1566 (2004), at preambular paragraphs 3
and 6, Resolution 1456 (2003) at paragraph 6, and Resolution 1373 (2001) at
paragraph 3(f).
---------------------------------------------------------------------------------------------------------------------
Substantive Assessment Under Article 3
13.2 The issue before the Committee is whether removal of the complainant to
Egypt violated 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 by the Egyptian authorities to torture. The Committee
observes that this issue must be decided in the light of the information
that was known, or ought to have been known, to the State party's
authorities at the time of the removal. Subsequent events are relevant to
the assessment of the State party's knowledge, actual or constructive, at
the time of removal.
13.3 The Committee must evaluate whether there were substantial grounds for
believing that the complainant would be personally in danger of being
subjected to torture upon return to Egypt. The Committee recalls that the
aim of the determination is to establish whether the individual concerned
was personally at risk of being subjected to torture in the country to which
he was returned. 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
was in danger of being subjected to torture upon his return to that country;
additional grounds must exist to show that the individual concerned was
personally at risk. Similarly, the absence of a consistent pattern of gross
violations of human rights does not mean that a person could not be
considered to be in danger of being subjected to torture in his or her
specific circumstances.
13.4 The Committee considers at the outset that it was known, or should have
been known, to the State party's authorities at the time of the
complainant's removal that Egypt resorted to consistent and widespread use
of torture against detainees, and that the risk of such treatment was
particularly high in the case of detainees held for political and security
reasons. [FNt] The State party was also aware that its own security
intelligence services regarded the complainant as implicated in terrorist
activities and a threat to its national security, and for these reasons its
ordinary tribunals referred the case to the Government for a decision at the
highest executive level, from which no appeal was possible. The State party
was also aware of the interest in the complainant by the intelligence
services of two other States: according to the facts submitted by the State
party to the Committee, the first foreign State offered through its
intelligence service an aircraft to transport the complainant to the second
State, Egypt, where to the State party's knowledge, he had been sentenced in
absentia and was wanted for alleged involvement in terrorist activities. In
the Committee's view, the natural conclusion from these combined elements,
that is, that the complainant was at a real risk of torture in Egypt in the
event of expulsion, was confirmed when, immediately preceding expulsion, the
complainant was subjected on the State party's territory to treatment in
breach of, at least, article 16 of the Convention by foreign agents but with
the acquiescence of the State party's police. It follows that the State
party's expulsion of the complainant was in breach of article 3 of the
Convention. The procurement of diplomatic assurances, which, moreover,
provided no mechanism for their enforcement, did not suffice to protect
against this manifest risk.
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[FNt] See, among other sources, the Report of the Committee against Torture
to the General Assembly (A/51/44), at paragraphs 180 to 222 and the
Committee's Conclusions and Recommendations on the fourth periodic report of
Egypt (CAT/C/CR/29/4, 23 December 2002).
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13.5 In light of this assessment, the Committee considers it appropriate to
observe that its decision in the current case reflects a number of facts
which were not available to it when it considered the largely analogous
complaint of Hanan Attia, [FNu] where, in particular, it expressed itself
satisfied with the assurances provided. The Committee's decision in that
case, given that the complainant had not been expelled, took into account
the evidence made available to it up to the time the decision in that case
was adopted. The Committee observes that it did not have before it the
actual report of mistreatment provided by the current complainant to the
Ambassador at his first visit and not provided to the Committee by the State
party (see paragraph 14.10 below); the mistreatment of the complainant by
foreign intelligence agents on the territory of the State party and
acquiesced in by the State party's police; the involvement of a foreign
intelligence service in offering and procuring the means of expulsion; the
progressively wider discovery of information as to the scope of measures
undertaken by numerous States to expose individuals suspected of involvement
in terrorism to risks of torture abroad; the breach by Egypt of the element
of the assurances relating to guarantee of a fair trial, which goes to the
weight that can be attached to the assurances as a whole; and the
unwillingness of the Egyptian authorities to conduct an independent
investigation despite appeals from the State party's authorities at the
highest levels. The Committee observes, in addition, that the calculus of
risk in the case of the wife of the complainant, whose expulsion would have
been some years after the complainants, raised issues differing from to the
present case.
---------------------------------------------------------------------------------------------------------------------
[FNu] Communication No. 199/2002, op. cit.
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Procedural Assessment Under Article 3
13.6 The Committee observes that the right to an effective remedy for a
breach of the Convention underpins the entire Convention, for otherwise the
protections afforded by the Convention would be rendered largely illusory.
In some cases, the Convention itself sets out a remedy for particular
breaches of the Convention, [FNv] while in other cases the Committee has
interpreted a substantive provision to contain within it a remedy for its
breach. [FNw] In the Committee's view, in order to reinforce the protection
of the norm in question and understanding the Convention consistently, the
prohibition on refoulement contained in article 3 should be interpreted the
same way to encompass a remedy for its breach, even though it may not
contain on its face such a right to remedy for a breach thereof.
---------------------------------------------------------------------------------------------------------------------
[FNv] See articles 12 to 14 in relation to an allegation of torture.
[FNw] See Dzemajl v. Yugoslavia, Case No 161/2000, Decision adopted on 21
November 2002, at paragraph 9.6.: "The positive obligations that flow from
the first sentence of article 16 of the Convention include an obligation to
grant redress and compensate the victims of an act in breach of that
provision. The Committee is therefore of the view that the State party has
failed to observe its obligations under article 16 of the Convention by
failing to enable the complainants to obtain redress and to provide them
with fair and adequate compensation."
---------------------------------------------------------------------------------------------------------------------
13.7 The Committee observes that in the case of an allegation of torture or
cruel, inhuman or degrading treatment having occurred, the right to remedy
requires, after the event, an effective, independent and impartial
investigation of such allegations. The nature of refoulement is such,
however, that an allegation of breach of that article relates to a future
expulsion or removal; accordingly, the right to an effective remedy
contained in article 3 requires, in this context, an opportunity for
effective, independent and impartial review of the decision to expel or
remove, once that decision is made, when there is a plausible allegation
that article 3 issues arise. The Committee's previous jurisprudence has been
consistent with this view of the requirements of article 3, having found an
inability to contest an expulsion decision before an independent authority,
in that case the courts, to be relevant to a finding of a violation of
article 3. [FNx]
---------------------------------------------------------------------------------------------------------------------
[FNx] Arkauz Arana v. France, Case No. 63/1997, Decision adopted on 9
November 1999, at paragraphs 11.5 and 12.
---------------------------------------------------------------------------------------------------------------------
13.8 The Committee observes that, in the normal course of events, the State
party provides, through the operation of the Migration Board and the Aliens
Appeals Board, for review of a decision to expel satisfying the requirements
of article 3 of an effective, independent and impartial review of a decision
to expel. In the present case, however, due to the presence of national
security concerns, these tribunals relinquished the complainant's case to
the Government, which took the first and at once final decision to expel
him. The Committee emphasizes that there was no possibility for review of
any kind of this decision. The Committee recalls that the Convention's
protections are absolute, even in the context of national security concerns,
and that such considerations emphasise the importance of appropriate review
mechanisms. While national security concerns might justify some adjustments
to be made to the particular process of review, the mechanism chosen must
continue to satisfy article 3's requirements of effective, independent and
impartial review. In the present case, therefore, on the strength of the
information before it, the Committee concludes that the absence of any
avenue of judicial or independent administrative review of the Government's
decision to expel the complainant does not meet the procedural obligation to
provide for effective, independent and impartial review required by article
3 of the Convention.
Frustration of Right Under Article 22 to Exercise Complaint to the Committee
13.9 The Committee observes, moreover, that by making the declaration under
article 22 of the Convention, the State party undertook to confer upon
persons within its jurisdiction the right to invoke the complaints
jurisdiction of the Committee. That jurisdiction included the power to
indicate interim measures, if necessary, to stay the removal and preserve
the subject matter of the case pending final decision. In order for this
exercise of the right of complaint to be meaningful rather than illusory,
however, an individual must have a reasonable period of time before
execution of a final decision to consider whether, and if so to in fact,
seize the Committee under its article 22 jurisdiction. In the present case,
however, the Committee observes that the complainant was arrested and
removed by the State party immediately upon the Government's decision of
expulsion being taken; indeed, the formal notice of decision was only served
upon the complainant's counsel the following day. As a result, it was
impossible for the complainant to consider the possibility of invoking
article 22, let alone seize the Committee. As a result, the Committee
concludes that the State party was in breach of its obligations under
article 22 of the Convention to respect the effective right of individual
communication conferred thereunder.
The State Party's Failure to Co-Operate Fully with the Committee
13.10 Having addressed the merits of the complaint, the Committee must
address the failure of the State party to co-operate fully with the
Committee in the resolution of the current complaint. The Committee observes
that, by making the declaration provided for in article 22 extending to
individual complainants the right to complain to the Committee alleging a
breach of a State party's obligations under the Convention, a State party
assumes an obligation to co-operate fully with the Committee, through the
procedures set forth in article 22 and in the Committee's Rules of
Procedure. In particular, article 22, paragraph 4, requires a State party to
make available to the Committee all information relevant and necessary for
the Committee appropriately to resolve the complaint presented to it. The
Committee observes that its procedures are sufficiently flexible and its
powers sufficiently broad to prevent an abuse of process in a particular
case. It follows that the State party committed a breach of its obligations
under article 22 of the Convention by neither disclosing to the Committee
relevant information, nor presenting its concerns to the Committee for an
appropriate procedural decision.
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, decides that the facts before it constitute
breaches by the State party of articles 3 and 22 of the Convention.
15. In pursuance of rule 112, paragraph 5, of its rules of procedure, the
Committee requests the State party to inform it, within 90 days from the
date of the transmittal of this decision, of the steps it has taken in
response to the Views expressed above. The State party is also under an
obligation to prevent similar violations in the future.
[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.]
* The text of a separate opinion, dissenting in part, by Committee member
Mr. Alexander Yakovlev is appended to the present document.
Separate Opinion of Committee Member Mr. Alexander Yakovlev
(dissenting, in part)
I respectfully disagree with the majority's finding on the article 3 issues.
The Committee establishes, correctly, the time of removal as the key point
in time for its assessment of the appropriateness, from the perspective of
article, of the complaint's removal. As is apparent from the Committee's
decision, the bulk of the information before it relates to events
transpiring after expulsion, which can have little relevance to the
situation at the time of expulsion.
It is clear that the State party was aware of its obligations under article
3 of the Convention, including the prohibition on refoulement. Precisely as
a result, it sought assurances from the Egyptian government, at a senior
level, as to the complainant's proper treatment. No less an authority than
the former Special Rapporteur of the Commission on Human Rights on Torture,
Mr. van Boven, accepted in his 2002 report to the Commission on Human Rights
the use of such assurances in certain circumstances, urging States to
procure "an unequivocal guarantee … that the persons concerned will not be
subjected to torture or any other forms of ill-treatment upon return" .
This, which is precisely what the State party did, is now faulted by the
Committee. At the time, the State party was entitled to accept the
assurances provided, and indeed since has invested considerable effort in
following-up the situation in Egypt. Whatever the situation may be if the
situation were to repeat itself today is a question that need not presently
be answered. It is abundantly clear however at the time that the State party
expelled the complainant, it acted in good faith and consistent with the
requirements of article 3 of the Convention. I would thus come to the
conclusion, in the instant case, that the complainant's expulsion did not
constitute a violation of article 3 of the Convention.
[signed] Alexander Yakovlev
[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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