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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 14 November 2005,
Having concluded its consideration of complaint No. 235/2003, submitted to
the Committee against Torture by Mr. M. S. H. 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 of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is M. S. H., born 1973, a citizen of Bangladesh
currently residing in Sweden. He claims that his forcible return to
Bangladesh would constitute a violation by Sweden of article 3 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. He is represented by counsel.
1.2 On 26 September 2003, the Committee transmitted the complaint to the
State party, together with a request under Rule 108, paragraph 1, of the
Committee's Rules of Procedure that the complainant not be expelled to
Bangladesh pending the Committee's consideration of his complaint; the State
party acceded to this request.
Facts as Submitted by the Complainant:
2.1 The complainant was an active member of the Bangladesh Freedom Party
('Freedom Party') from 1990, and Assistant Secretary of the party at Titumir
College from 1995. His activities included calling people to meetings and
mass demonstrations. In 1996, the Awami League came to power in Bangladesh,
which set out to 'destroy' the Freedom Party. Following a demonstration by
the Freedom Party on 1 August 1996, the complainant was arrested by police
and taken to a local police station, where he was interrogated about other
members of the Freedom Party. He was held for 11 days, during which he was
subjected to torture, consisting of beatings with sticks, warm water being
poured through his nose, and being suspended from the ceiling. He was
released on condition of abandoning his political activities for the Freedom
Party.
2.2 The complainant however continued his activities. In January 1997, he
received death threats from members of the Awami League. Following a large
demonstration of the Freedom Party on 17 March 1999, he was arrested and
again tortured by the police; they poured water down his nose and beat him.
He was released after seven days in custody, but only after providing a
written statement that he would cease his political activities. The police
threatened to shoot him if he broke this promise. In February 2000, the
Freedom Party participated in a demonstration together with three other
parties; shortly afterwards, the complainant learnt from his parents that he
had been falsely accused of, and charged under the Public Safety Act with,
illegal possession of arms, throwing bombs and disrupting public order.
Fearing further detention and torture, he fled the country.
2.3 The complainant entered Sweden on 24 May 2000 and applied for asylum on
the same day. He referred to his experiences in Bangladesh, and claimed that
he feared imprisonment if returned. He invoked NGO and government reports
about the human rights situation in Bangladesh, which attested to a climate
of impunity for torture, and deficiencies in the legal system. However, the
Migration Board noted that the Awami League was no longer in power in
Bangladesh, and that accordingly the complainant had no basis to fear
persecution at its hands. On 19 December 2001, the Migration Board rejected
the asylum application and ordered the complainant to be deported.
2.4 The complainant appealed to the Aliens' Appeals Board, arguing that
torture continued to be widespread in Bangladesh despite changes in the
political situation. He referred in particular to the so-called 'Operation
Clean Heart'. The Appeals Board did not question that the complainant had
previously been subjected to torture in Bangladesh; however it considered
that the general human rights situation in Bangladesh was not itself
sufficient to place the complainant at risk of torture or other degrading
treatment. On 6 March 2003, the Appeals Board upheld the decision of the
Migration Board.
2.5 On 21 March 2003, the complainant filed a new application with the
Migration Board, and presented detailed medical evidence corroborating the
torture to which he had been subjected in Bangladesh, and that he suffered
from post traumatic stress disorder. The complainant also invoked a report
by the Swedish Foreign Office on Bangladesh dating from 2002, which
confirmed that torture was widespread. Based on the above, he claimed to be
at risk of torture if returned to Bangladesh. On 19 May 2003, the Migration
Board rejected the application, finding that nothing had been submitted by
the complainant which would cause it to review its earlier decision.
The Complaint:
3. The complainant claims that his deportation to Bangladesh would amount to
a violation of article 3 of the Convention, on the basis that there are
substantial reasons for believing that he would be subjected to torture or
other inhuman treatment in Bangladesh. He states that, although the Awami
League is no longer in power, the Freedom Party is also an 'enemy' of the
current government, and that changes in the political situation since he
left the country do not diminish the risk of mistreatment if returned to
Bangladesh.
The State Party's Observations on Admissibility and Merits:
4.1 In its observations dated 21 November 2003, the State party objects to
the admissibility of the claim and addresses the merits of the case. In
relation to admissibility, it submits that the complainant has failed to
establish a prima facie case of a violation of article 3.
4.2. The State party recalls the procedures governing asylum claims in
Sweden. Under Chapter 3 of the Aliens Act, an alien is entitled to a
residence permit in Sweden if he left his country of nationality because of
a well-founded fear of being subjected to torture or other inhuman or
degrading treatment or punishment. Chapter 8 prohibits the expulsion of such
persons. A residence permit may also be issued to an alien for humanitarian
reasons. Aliens cannot be refused asylum until the Migration Board has heard
the application. The decision of the Migration Board can be appealed to the
Aliens Appeals Board.
4.3 In relation to the complainant, the State party notes that he was
interviewed for a first time on the day of his arrival in Sweden. He stated
that he had been a member of the Freedom Party since 1990, and, due to his
political activities, was arrested in 1996 when the Awami League came to
power. He had been arrested and tortured on two occasions, in August 1996
and March 1999. In February 2000, he had been falsely accused of disturbing
public order, and following the issue of an order for his arrest, he fled to
Sweden with the help of a smuggler. At his second interview on 23 November
2001, he added a number of details about his political activities and his
experiences in Bangladesh, including that he had been falsely accused and
charged with illegal possession of weapons under the Public Safety Act.
4.4 On 19 December 2001, the Migration Board dismissed his application for
asylum, noting that the political situation in the country had changed, and
that the Awami League was no longer in power. The Board found that he was
not entitled to asylum as a refugee or to a residence permit as a person
otherwise in need of protection. The complainant's appeal to the Aliens
Appeals Board was rejected on 6 March 2003.
4.5 The State party acknowledges that all domestic remedies are exhausted.
However, it contends that the communication should be considered
inadmissible under article 22, paragraph 2, of the Convention, on the basis
that the complainant's submission that he risks being subjected to torture
upon return to Bangladesh fails to rise to the basic level of substantiation
required for the purposes of admissibility, and is therefore manifestly
unfounded. [FN1]
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[FN1] Reference is made to H.I.A. v Sweden, Communication No 216/2002, Views
adopted 2 May 2003, para 6.2
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4.6 On the merits, the State party submits that the question is whether
there are substantial grounds for believing that the individual concerned
would be personally at risk of being subjected to torture in the country to
which he is being returned. [FN2] It follows that the existence of a
consistent pattern of human rights violations in a country does not as such
constitute sufficient ground for determining that a particular person would
be in danger of being subjected to torture.
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[FN2] Reference is made to is made to S.L. v Sweden, Communication No
150/1999, Views adopted 11 May 2001, para 6.3.
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4.7 In relation to the general human rights situation in Bangladesh, the
State party notes that, whilst problematic, the situation has improved.
Violence remains a pervasive element in the country's politics, and
supporters of different parties frequently clash with each other and with
police during rallies. The police reportedly use torture, beatings and other
forms of abuse while interrogating suspects. The government often uses the
police for political purposes � thus several members of the Awami League
have been detained. But when members of the Swedish Aliens Appeals Board
conducted a study tour to Bangladesh in October 2002, they concluded that
there was no institutionalized persecution in Bangladesh, and that
persecution for political reasons was rare at the grass roots level. Those
most at risk of harassment were opposition politicians and party members in
leading positions. In any event, the State party emphasizes that the crucial
factor in this case is that the Awami League is no longer in power.
4.8 On the complainant's personal circumstances, the State party submits
that Swedish asylum law reflects the principles contained in article 3 of
the Convention, and that Swedish authorities apply the same test when
considering an application for asylum as that applied by the Committee in
considering a complaint under the Convention. The authorities have
considerable experience in dealing with asylum claims from Bangladesh and in
assessing whether a person deserves protection, having regard to the risk of
torture and other ill treatment. Between 1990 and 2002 it dealt with over
1700 such applications, and over 700 were granted. For the State party,
considerable weight should be attached to the opinions of its immigration
authorities, which in the present instance found no reason to conclude that
the complainant should be granted asylum.
4.9 The State party submits that the complainant in this case bases his
claim on the fact that he was twice previously subjected to torture in
Bangladesh. It recalls the Committee's jurisprudence that, whilst past
torture is one factor to take into account in considering a claim under
article 3, the focus of the Committee's deliberation is whether the
complainant would presently be at risk of torture if returned to his home
country; past experience of torture does not of itself establish a present
risk. [FN3] Furthermore, the Committee's General Comment and jurisprudence
indicate that past experience of torture is pertinent if it has occurred in
the recent past, which is not the case in the present instance. [FN4]
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[FN3] Reference is made to X, Y and Z v Sweden, Communication No 61/1996,
Views adopted on 6 May 1998, para 11.2
[FN4] Reference is made to S.S. v Netherlands, Communication No 191/2001,
Views adopted on 5 May 2003, para 6.6
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4.10 The complainant resumed his political activities after being released
from custody the second time, despite the death threat from the police. He
was able to continue his political activities until February 2000. He even
felt safe enough to participate in a demonstration that was attacked by the
police and members of the Awami League. The State party considers that this
is indicative of the fact that the complainant may not have believed himself
to be in danger.
4.11 The State party notes that the complainant has not provided any
evidence that he is wanted by the authorities in connection with criminal
charges under the Public Safety Act, nor was any information presented about
the current state of these charges. In any event, the Act has been repealed
in April 2002. In view of the government's information that false
accusations tend to be leveled primarily against senior opposition figures,
individuals active in politics at the grass-root level may avoid harassment
by relocating within the country. In the absence of any evidence adduced by
the complainant, the State party considers his claim about pending criminal
charges to be unfounded. Even if he did risk detention in connection with
criminal charges, this does not demonstrate that there are substantial
reasons for believing that he would face a personal risk of torture. [FN5]
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[FN5] Reference is made to I.A.O. v Sweden, Communication No 65/1997, Views
adopted on 6 May 1998, para 14.5; and P.Q.L. v Canada, Communication
57/1996, Views adopted on 17 November 1997.
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4.12 The State party reiterates that the political situation in Bangladesh
has changed considerably since the complainant left. According to the
complainant, it was the ruling party, the Awami League, which persecuted
him, but this party was defeated in the general elections of October 2001.
There is nothing to suggest that the complainant has anything to fear from
the parties currently in power. Indeed, according to information from the
Swedish embassy in Dhaka, the ruling BNP and the Freedom Party are both
'anti-Awami League' and on good terms with each other. Accordingly, nothing
suggests that the complainant would be in danger of politically motivated
persecution which would render him vulnerable to torture.
The Complainant's Comments on the State Party's Observations:
5.1 In his comments on the State party's observations dated 26 February
2004, the complainant provides further information about the general human
rights situation in Bangladesh. He invokes Amnesty International's report
from 2003, which concludes that torture has been widespread in the country
for years, that successive governments have not addressed the problem, and
that there is a climate of impunity. Court proceedings against a public
employee, such as a police officer, are only possible with the government's
agreement, which is rarely forthcoming. The complainant challenges the State
party's assessment that activists at grass roots level are not the subject
of false accusations and submits that it is generally such people who are
more vulnerable to persecution than leading opposition figures, who are more
closely followed by the media, resulting in a certain level of protection.
5.2 In relation to his personal circumstances, the complainant reiterates
that he faces a foreseeable, real and personal risk of torture if he is
returned to Bangladesh. He argues that, where it is established that a
person has been subjected to torture in the past, there should be a
presumption that this person runs a risk of torture in the future, unless
circumstances have manifestly changed. The complainant argues that in his
own case, no fundamental changes have taken place. Those who work for the
Freedom Party are still in opposition to the present government, and
political opponents continue to be subjected to arrest and torture in
Bangladesh. The Freedom party is considered a 'political enemy' by the
current government.
5.3 The complainant recalls that, following his release from custody in
1999, he continued his political activities out of conviction, despite the
dangers and not because there was no danger, as suggested by the State
party. He argues that it is not possible to obtain documents substantiating
charges under the Public Safety Act until one is actually arrested, and
that, although the Act has been repealed, no amnesty has been granted to
persons charged under the Act. The complainant notes that in October 2003,
he spoke with his mother, who told him that the police had come to look for
him, and that they had not believed her when she told them he now lived
abroad. This demonstrates that he remains the subject of interest to the
authorities. Finally, the complainant submits that the risk of being
detained in connection with pending charges, combined with the widespread
phenomenon of torture in detention in Bangladesh, and the fact that the
complainant has been tortured in the past, together justify the conclusion
that he faces a real and personal risk of torture if returned to Bangladesh.
Issues Before the Committee:
6.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as it is
required to do under article 22, paragraph 5(a), of the Convention, that the
same matter has not been and is not being considered under another procedure
of international investigation or settlement. The Committee notes that the
exhaustion of domestic remedies was not contested by the State party in its
initial submission.
6.2 The State party objects to admissibility on the grounds that the
complainant has not established a prima facie case of a violation. However,
the Committee considers that the complainant has provided sufficient
information in substantiation of his claim to warrant consideration on the
merits. As the Committee sees no further obstacles to the admissibility of
the communication in this regard, it proceeds to its consideration on the
merits.
6.3 The Committee must determine whether the forced return of the
complainant to Bangladesh would violate the State party's obligations under
article 3, paragraph 1 of the Convention not to expel or return ('refouler')
an individual to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
6.4 The Committee recalls its General Comment on article 3, pursuant to
which the Committee must assess whether there are 'substantial grounds for
believing that the author would be in danger of torture' if returned, and
that the risk of torture 'must be assessed on grounds that go beyond mere
theory or suspicion'. The risk involved need not be 'highly probable', but
it must be 'personal and present'. [FN6] In this regard, in previous
decisions the Committee has consistently determined that the risk of torture
must be 'foreseeable, real and personal.' [FN7]
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[FN6] General Comment No1, Sixteenth Session (1996).
[FN7] H.K.H. v Sweden, Communication No 204/2002, Views adopted 28 November
2002.
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6.5 In assessing the risk of torture in the present case, the Committee has
noted the complainant's submission that he was twice previously tortured in
Bangladesh. However, as the State party points out, according to the
Committee's General Comment, previous experience of torture is but one
consideration in determining whether a person faces a personal risk of
torture upon return to his country of origin; in this regard, the Committee
must consider whether or not the torture occurred recently, and in
circumstances which are relevant to the prevailing political realities in
the country concerned. In the present case, the torture to which the
complainant was subjected occurred in 1996 and 1999, which could not be
considered recent, as well as in quite different political circumstances,
i.e. when the Awami League was in power in Bangladesh and was, according to
the complainant, bent on destroying the Freedom Party.
6.6 The Committee has taken note of the submissions regarding the general
human rights situation in Bangladesh and the reports that torture is
widespread; however, this finding alone does not establish that the
complainant himself faces a personal risk of torture if returned to
Bangladesh. The Committee observes that the main reasons the complainant
fears a personal risk of torture if returned to Bangladesh are that he was
previously subjected to torture for his membership in the Freedom Party, and
that he risks being imprisoned and tortured upon his return to Bangladesh
pursuant to his alleged charges under the Public Safety Act.
6.7 The complainant submits that the Freedom Party remains an enemy of the
current government. However, the State party's information on this issue is
to the contrary. The Committee recalls that in accordance with its General
Comment No.1, [FN8] it is for the complainant to present an arguable case
and to establish that he would be in danger of being tortured and that the
grounds for so believing are substantial in the way described, and that such
danger is personal and present. In the present case, the Committee is not
satisfied by the complainant's argument that given current political
situation in Bangladesh, he would still be in danger of being tortured
merely for being a member of the Freedom Party in a non-prominent position.
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[FN8] General Comment No1, Sixteenth Session (1996).
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6.8 In relation to the charges which the complainant says were filed against
him, the Committee has noted both the State Party's argument that no
evidence has been produced in support of this contention, and the
complainant's response that he would only be able to obtain such evidence
once arrested. The current status of the charges against him remains in any
event unclear, since, according to the State party, the relevant legislation
has been repealed. While the complainant notes that no amnesty has been
issued in relation to offences under the legislation, such an amnesty would
ordinarily only apply to a conviction, rather than to criminal charges � the
Committee also considers that the complainant has not been able to
substantiate his claims that the prosecution of charges fired against him
will proceed, even though the relevant legislation has been repealed. As a
consequence, it does not consider it likely that the complainant risks
imprisonment on return.
6.9 In the circumstances, the Committee concludes that the expulsion of the
complainant to Bangladesh would not violate the State party's obligations
under article 3 of the Convention.
7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the removal of the complainant to
Bangladesh would not constitute a breach of article 3 of the Convention.
[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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