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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 15 November 2005,
Having concluded its consideration of complaint No. 254/2004, submitted to
the Committee against Torture by Mr. S.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 author
of the complaint, his counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant, S.S.H., a Pakistani national, born on 2 March 1969, is
now in Switzerland, where he filed an application for asylum on 22 May 2000.
The application was rejected on 20 June 2002. The complainant asserts that
his return to Pakistan would constitute a violation by Switzerland of
article 3 of the Convention against Torture. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 16 September
2004. At the same time the Committee, acting under article 108, paragraph 1,
of its rules of procedure, decided that interim measures of protection, as
sought by the complainant, were not justified in the circumstances.
The Facts as Submitted by the Complainant
2.1 The complainant was an official in the Pakistani Ministry of Culture,
Sport and Tourism from 1989 on. He obtained the post as a result of the
contacts maintained by his father with the Minister, Mushahid Hussain Sayyed.
The Government of Prime Minister Nawaz Sharif was dismissed on 12 October
1999. The new Government of General Pervez Musharraf then opened an
investigation into the activities of the former Minister, who was suspected
of corruption and placed under house arrest. In December 1999 a colleague of
the complainant, Mr. Mirani, disappeared. The complainant subsequently
learned through a friend who at the time worked for the National
Accountability Bureau (NAB) that Mr. Mirani had been arrested and tortured
by the Bureau, and that before his death in detention he had told them that
the complainant was close to the Minister.
2.2 Fearing that he might suffer the same fate as his colleague, the
complainant left the country on 22 February 2000 on his official passport.
He did so illegally, since the new Government had introduced a new law
requiring all officials to obtain official authorization, the "no-objection
certificate", from the secret service before leaving the country. The
complainant obtained authorization to leave the country from his superiors
but not the required authorization from the secret service. After he had
left the country, on several occasions men asked his father where he was.
His mother thought that the authorities wanted to arrest their son. [FN1]
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[FN1] These men have not reappeared since July 2001.
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2.3 The complainant arrived in Europe on 21 May 2000 and filed an
application for asylum in Switzerland on 22 May 2000. In a decision of 20
June 2002 the application was rejected by the Federal Office for Refugees (ODR),
which ordered his expulsion from Swiss territory. On 7 April 2004 the Asylum
Appeal Commission (CRA) rejected the complainant's appeal. The Commission
considered that the complainant had no further reason to fear political
persecution since the Minister with whom he had maintained close relations
was no longer under house arrest. The Commission thus upheld the decision by
the Federal Office for Refugees ordering his expulsion. In a letter dated 16
April 2004 the Federal Office for Refugees set 11 June 2004 as the date on
which he must leave Switzerland. On 14 June 2004 the complainant filed an
application for review with suspensory effect with the Asylum Appeal
Commission. The application was rejected on 23 June 2004. On 15 July 2004
the complainant had sought a deferral of the departure date, on the ground
that he was required to give two months' notice to leave his job. On 30 July
2004 the Federal Office for Refugees held that this ground was not such as
to justify deferral. The complainant is no longer authorized to stay in
Switzerland and may thus be expelled to Pakistan at any time.
The Complaint
3.1 The complainant asserts that there are substantial grounds for believing
that he would be subjected to torture if returned to Pakistan and that his
expulsion to that country would constitute a violation by Switzerland of
article 3 of the Convention.
3.2 He fears being subjected to torture since he was a close collaborator of
the former Minister, Mr. Mushahid Hussain Sayyed. In addition, he is afraid
that the authorities will initiate proceedings against him since he left the
country illegally in that he did not obtain the required authorization, the
"no-objection certificate", from the secret service. He would thus be liable
to five years' imprisonment, and would also be liable to seven years'
imprisonment for having made use of his official passport.
3.3 The complainant claims that his personal fears of being tortured were
consistently substantiated during the review of his application for asylum.
He also asserts that the Federal Office for Refugees at no time cast doubt
on the details he supplied to the Office of his treatment in Pakistan.
State Party's Observations on Admissibility and Merits
4.1 By a note verbale of 1 November 2004 the State party indicated that it
would not contest admissibility, and on 9 March 2005 formulated observations
on the merits. Firstly, it recalled the reasons why, following thorough
consideration of the complainant's allegations, the Asylum Appeal
Commission, like the Federal Office for Refugees, was unconvinced that the
complainant ran a serious risk of being persecuted if returned to Pakistan.
4.2 The State party recalled that the Appeal Commission, in its decision of
7 April 2004, noted that the complainant had apparently not encountered even
the slightest difficulty in leaving Pakistan through Karachi airport with
his official government passport. According to the Commission, that showed
that at the time of his departure the complainant ran no risk of being
subjected to ill-treatment. The Commission then considered whether such a
risk had materialized in the intervening period and concluded that this was
not the case since the house arrest imposed on the former Minister had been
lifted in December 2000.
4.3 According to the Asylum Appeal Commission, there were other factors
casting doubt on the assertion that the complainant ran a risk of
ill-treatment in the event of return to Pakistan. The Commission considered
that the family links between the persons cited by the complainant before
the Commission meant that their statements could not be relied on with any
degree of confidence. Furthermore the complainant never demonstrated that he
had been politically active.
4.4 The Asylum Appeal Commission, on reviewing an appeal by the complainant
in which he asserted that he was in peril of criminal prosecution owing to
his illegal emigration and his improper use of his official passport, in a
decision of 23 June 2004 again rejected the appeal, on the ground that the
risk was already known to the complainant at the time of the ordinary
proceedings and that the new documents produced could have been submitted
during those proceedings.
4.5 Secondly, the State party considered the merits of the decision by the
Asylum Appeal Commission in the light of article 3 of the Convention and the
Committee's jurisprudence. The State party notes that the complainant merely
recalled before the Committee the grounds cited before the national
authorities and cited no new evidence for reconsideration of the Appeal
Commission's decisions of 7 April and 23 June 2004.
4.6 Having recalled the Committee's jurisprudence and its general comment
No. 1 on the implementation of article 3 of the Convention, the State party
fully endorses the grounds cited by the Asylum Appeal Commission
substantiating its rejection of the complainant's application for asylum and
upholding his expulsion. It recalls the Committee's jurisprudence whereby
the existence of a consistent pattern of gross, flagrant or mass violations
of human rights does not constitute sufficient reason for concluding that a
particular individual is likely to be subjected to torture on return to his
or her country, and that additional grounds must therefore exist before the
likelihood of torture can be deemed to be, for the purposes of article 3,
paragraph 1, "foreseeable, real and personal". [FN2] The State party notes
that the specific instances of torture in Pakistan cited by the complainant
concerned political activists, whereas the complainant himself had never
engaged in political activity.
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[FN2] Communications Nos. 94/1997 (K.N. v. Switzerland), decision of 19 May
1998, para. 10.5, and 100/1997 (J.U.A. v. Switzerland), decision of 10
November 1998, para. 6.5.
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4.7 As for the risk of torture incurred owing to the complainant's links
with his former employer, the State party notes that officials who did not
discharge particularly sensitive functions within the former Government were
not at risk of reprisals from the Pakistani army. As a stenotypist, the
complainant did not discharge such duties. In any event, had that been the
case, the State party considers that the complainant would certainly have
been arrested immediately after the October 1999 coup d'état and placed
under house arrest. Furthermore the complainant's name did not appear on the
so-called "Exit Control List" drawn up by the Pakistani army, and which was
tantamount to a prohibition on leaving the country for persons whose names
appeared on the list. Lastly, the State party notes that the house arrest of
the former Minister was lifted after 14 months; he seems not to have
suffered ill-treatment and is on good terms with the current Government.
4.8 From the standpoint of article 3 of the Convention, the State party
indicates that, according to the Committee's consistent jurisprudence, this
provision offers no protection to a complainant who merely alleges a fear of
being arrested on return to his or her country. [FN3] This conclusion is all
the more valid where there is simply a possibility of being detained. [FN4]
The State party considers that the complainant has not demonstrated that he
is likely to be subjected to torture in the event of arrest. Should criminal
proceedings be initiated against the complainant, he could, in any event, be
represented by counsel and undoubtedly benefit from the support of the
former Minister.
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[FN3] Communication No. 57/1996 (P.Q.L. v. Canada), decision of 17 November
1997, para. 10.5.
[FN4] Communication No. 65/1997 (I.A.O. v. Sweden), decision of 6 May 1998,
para. 14.5.
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4.9 Lastly, the State party explains that the complainant has never claimed
to have suffered ill-treatment in the past, or to have been politically
active in Pakistan or elsewhere.
4.10 The State party concludes that the complainant's statements do not lead
to the conclusion that there are substantial grounds for believing, as
specified in article 3, paragraph 1, that he would be in danger of being
subjected to torture if returned to Pakistan.
Complainant's Comments on the State Party's Observations
5.1 By a letter dated 26 May 2005 the complainant submitted comments on the
State party's observations.
5.2 Regarding his position within the Ministry, he explained that while his
job title was "stenotypist", that position in Pakistan corresponded to the
post of the Minister's personal secretary. As such, he was privy to all
communications, directives and orders issued by the former Minister, both in
the office and at home. He thus represented a major source of information in
any investigation into Mr. Sayyed's activities.
5.3 As for his lack of political involvement, the complainant states that he
feared political persecution owing to his familiarity with the former
Minister's affairs. Although Mr. Sayyed is now free to resume his political
activities, the complainant asserts that, should he oppose the current
Government, the old charges of corruption would resurface. In that
eventuality the complainant would be compelled to provide the necessary
information to the National Accountability Bureau.
5.4 With regard to his fear of being arrested and charged if returned to
Pakistan owing to the fact that he left the country illegally, the
complainant emphasizes that on his arrest the Pakistani police would present
him with a long list of charges arising from his former position within the
Ministry. The complainant considers that he would then not receive any
support from Mr. Sayyed.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), of the Convention, that the same matter
has not been and is not being examined under another procedure of
international investigation or settlement. In the present case the Committee
further notes that domestic remedies have been exhausted and that the State
party does not contest admissibility. Accordingly, the Committee finds the
complaint admissible and proceeds to consideration of the merits.
6.2 The first issue before the Committee is whether return of the
complainant to Pakistan would constitute a violation of the obligation of
the State party, under article 3 of the Convention, not to expel or return a
person to a State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.
6.3 The Committee must determine, pursuant to article 3, paragraph 1,
whether there are substantial grounds for believing that the complainant
would be in danger of being subjected to torture if returned to Pakistan. In
order to take such a decision, the Committee must take account of all
relevant considerations, including the existence of a consistent pattern of
gross, flagrant or mass violations of human rights. However, the aim of such
an analysis is to determine whether the complainant runs a personal risk of
being subjected to torture in the country to which he would be returned. It
follows that the existence of a pattern of gross, flagrant or mass
violations of human rights in a country does not as such constitute
sufficient reason for determining that a particular person would be in
danger of being subjected to torture on return to that country; additional
grounds must be adduced to show that the individual concerned would be
personally at risk. Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances.
6.4 The Committee recalls its general comment on the implementation of
article 3, that "the risk of torture must be assessed on grounds that go
beyond mere theory or suspicion. However, the risk does not have to meet the
test of being highly probable" (A/53/44, annex IX, para. 6).
6.5 In the present case the Committee considers that the indication that the
complainant's former colleague, Mr. Mirani, reportedly gave the
complainant's name to the National Accountability Bureau under torture does
not in any way mean that the complainant is himself likely to be arrested
and tortured. The complainant merely asserts that on several occasions
unidentified men sought to determine his whereabouts. It would appear, in
any event, that these men ended their investigations around July 2001.
Accordingly, the Committee considers that there is nothing to indicate that
the complainant is now being sought by the Pakistani authorities.
6.6 Further, the Committee notes that the complainant, as a "stenotypist",
did not discharge sensitive duties within the former Government. Further,
his name did not appear on the Exit Control List prepared by the Pakistani
army, and the complainant himself acknowledges that he was never an active
political opposition figure. The Committee is thus unable to conclude that
the complainant would be exposed to a substantial risk of being tortured
owing to his former position within the Ministry.
6.7 The Committee also notes that the house arrest of the former Minister
was lifted after 14 months and that he was not troubled further by the
Pakistani authorities. The Committee thus considers it improbable that the
complainant would be subjected to ill-treatment on his return to Pakistan.
6.8 With regard to the risk of being arrested and charged owing to the fact
that the complainant left Pakistan illegally and made improper use of his
official passport, the Committee recalls that the mere fact that the
complainant might be arrested and tried would not constitute substantial
grounds for believing that he would be in danger also of being subjected to
torture. [FN5] The complainant has not submitted any proof that he is likely
to be subjected to torture in the event of arrest.
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[FN5] Communication No. 57/1996 (P.Q.L. v. Canada), decision of 17 November
1997, para. 10.5.
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6.9 In view of the foregoing, the Committee considers that the complainant
has not demonstrated the existence of substantial grounds for believing that
his return to Pakistan would expose him to a real, specific and personal
risk of torture, as required under article 3 of the Convention.
7. Accordingly, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, is of the view that the return of the
complainant to Pakistan does not reveal a breach of article 3 of the
Convention.
[Done in English, French, Russian and Spanish, the French text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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