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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 8 May 2006,
Having concluded its consideration of complaint No. 278/2005, submitted to
the Committee against Torture on behalf of Mr. Asim Elmansoub 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 is Asim Elmansoub, a Sudanese national born in 1964,
currently detained in Switzerland and awaiting deportation to Sudan. He
claims that his deportation would constitute a violation of article 3 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. He is represented by counsel. The Convention entered into
force for Switzerland on 2 March 1987.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 9 November
2005. Pursuant to rule 108, paragraph 1, of the Committee's rules of
procedure, the State party was requested not to expel the complainant to
Sudan while his case was pending before the Committee. The State party
acceded to such request.
The Facts as Submitted by the Complainant
2.1 The complainant is a Sudanese citizen from Darfur belonging to the Borno
tribe. From 1986 to 2004, he studied and worked in the former Yugoslavia,
his most recent occupation consisting in providing humanitarian relief and
medical assistance to injured persons through the "Kuwait Joint Relief
Committee in Kosovo", where he was employed until 1 August 2004. The
complainant contends that, from March 2002 to August 2004, he secretly
provided distance assistance to refugees from Darfur, through a family aid
committee. Since 2003, he was an active member of the JEM (Sudanese Movement
for Justice and Equality), a non-Arab rebel group contrary to the government
and the Janjaweed militias.
2.2 On 20 August 2004, the complainant returned to Sudan. One month later,
he was arrested in Khartoum, together with four other persons, by members of
the Sudanese security agency, and accused of having supplied weapons to
Darfur citizens. He contends that the real reason behind his arrest was his
JEM membership. On the third day of his arrest, the author bribed the person
that was guarding him and gained his freedom. Neither the complaint
submitted to the Committee nor any further comments by the complainant
contain any reference to any acts of torture having occurred during his
arrest. However, in the hearings and complaints filed before the Swiss
Federal Office for Refugees, the complainant stated that, during his
three-day arrest, he was left without water for hours and kept in an unlit
room, which allegedly amounted to acts of torture.
2.3 The complainant left Sudan for Switzerland through Egypt with a tourist
visa. In Switzerland, he applied for asylum on 1 October 2004. By decision
of 1 November 2004, the Swiss Federal Office for Refugees rejected the
application, considering that the complainant's allegations concerning the
provision of humanitarian assistance to Darfur refugees and his detention
were not credible and full of inconsistencies. In particular, it considered
that the complainant was not able to explain the manner in which this
assistance was provided and his particular role therein, as well as the
exact period of his engagement. It further noted that it was unlikely that
the complainant could have bribed the guard on the third day of his
detention and free himself when he had declared that his money and passport
had been seized by the security agents upon his detention.
2.4 The Appeal Commission rejected the complainant's appeal on 15 April
2005, on grounds of lack of substantiation and credibility. On 30 June 2005,
the complainant filed a request for reconsideration based on the fact that
his brother had been arrested in Sudan. This request was also dismissed by
the Appeal Commission on 8 July 2005, which considered that this new element
of proof did not alter the object of the complaint. A request for suspension
of the deportation was declined on 3 August 2005, also based on lack of
substantiation of the complainant's arguments.
2.5 By letter of 18 August 2005 sent to the Swiss Migration Office, the
complainant requested to be deported to a third country, Syria, in order to
better organise his return to Sudan without catching the attention of the
Sudanese authorities. On 26 August 2005, the Swiss Migration Office acceded
to the complainant's request and notified him that, after having consulted
the Swiss embassy in Damascus, a flight had been booked to Damascus
departing on 9 September 2005. However, the complainant refused to take that
flight.
The Complaint
3. The complainant maintains that the Justice and Equality Movement, to
which he belongs, is opposed to the government of Sudan and that its members
are systematically arrested by Sudanese security forces and sometimes
tortured during their detention. He adds that torture and inhuman and
degrading treatments is in the order of the day in Sudan, as denounced in
the human rights report annexed to the complaint. [FN1] The complainant
sustains that there are substantial grounds for believing that he would be
subjected to torture if returned to Sudan, in violation of article 3 of the
Convention. [FN2]
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[FN1] Amnesty International December 2004 Report on the human rights
situation in Sudan.
[FN2 ]Attached to the complaint are two letters of members of the JEM German
Office declaring that the author would be in danger of being tortured or
killed if returned to Sudan.
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State Party's Submissions on the Admissibility and Merits of the Complaint
4.1 By letter of 21 October 2005, the State party does not contest the
admissibility of the communication. On the merits, the State party contends
that there are no substantial grounds for believing that the author would be
in danger of being subjected to torture upon his return to Sudan. The State
party notes that it does not suffice that there is a pattern of gross human
rights violations in Darfur to conclude that the complainant would risk
being subjected to torture were he to be returned to Sudan and that a real
and personal risk needs to be proved. The complainant has not, in the State
party's view, substantiated that he personally risks being subjected to
torture if deported.
4.2 The State party notes that the complainant has spent his last eighteen
years of life in the Former Yugoslavia and that his domicile in Sudan is his
mother's house in the province of Khartoum. Therefore, the State party
considers that the notorious human rights situation in Darfur does not allow
in itself to conclude that the complainant would risk being tortured if
returned to Khartoum.
4.3 The State party further notes that, contrary to the complainant's
allegations before the Swiss authorities, he has not invoked before the
Committee having been tortured or maltreated in the past nor has he provided
any medical or other evidence in this regard.
4.4 The State party acknowledges that politically active JEM members risk
being arrested and even subjected to torture. However, it notes that the
complainant has not been able to specify the nature of his political
activities in Sudan or abroad when asked by the Swiss authorities, who found
the complainant's statements regarding the assistance provided to Darfur
refugees full of inconsistencies. These authorities also found that the
complainant's allegations regarding his detention and the way he managed to
bribe the guard, recover the passport and escape, were not credible. The
State party contends that the complaint merely contains general statements
on the situation concerning JEM, with no direct link to the complainant's
own activities. Additionally, it notes that the complainant only mentioned
that he was a member of JEM after his application to the Swiss Federal
Office for Refugees had been rejected.
4.5 The State party observes that the author himself requested to be
deported to Damascus by letter of 18 August 2005 sent to the Swiss migration
office and later refused to take the flight to Damascus booked by the Swiss
authorities.
Complainant's Comments on State Party's Observations
5.1 By letter of 12 January 2006, the author reiterates that JEM is a
movement fighting for political change in the country, which has a national
agenda directed against the present government of Sudan, and that arbitrary
arrests and torture on the mere suspicion of membership or helping the
rebels are common and carried out with total impunity.
5.2 The complainant stresses that he is not any member but a founding member
of JEM and well-known throughout Sudan due to his activities. Therefore, he
contends that it is almost certain that he is well known by Sudanese
security forces and that he would be tortured if returned to Sudan. He notes
that he was initially instructed by the rebel leadership to refrain from
disclosing his close and special relationship with the movement and that,
when he was finally told to declare his membership, the Swiss authorities
refused to believe him.
5.3 The complainant recalls that Sudan is a country with appalling human
rights records, with a pattern of gross, flagrant and massive human rights
violations.
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 issue before the Committee is whether the complainant's removal to
Sudan would constitute a violation of the State party's obligation, 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 In assessing whether there are substantial grounds for believing that
the complainant would be in danger of being subjected to torture if returned
to Sudan, 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 observes that the complainant's
allegations that he would risk being tortured if returned to Sudan rely on
the fact that members of JEM face a high risk of detention and torture and
on the general human rights records of Sudan. The Committee also notes the
State party's allegations that the complainant has failed to specify the
nature of his political activities and the nature of the assistance provided
to Darfur refugees. In this regard, the complainant has failed to explain
his concrete role within JEM that would make him particularly vulnerable to
the risk of being placed in danger of torture were he to be expelled. He has
only invoked his condition of "founding member" in his last submission to
the Committee, without having justified or proved this condition and without
having ever invoked it before the national authorities.
6.6 The Committee further notes the State party's submission that the
complainant has not invoked or proved before the Committee that he was
tortured or maltreated in the past.
6.7 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 Sudan 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 Sudan does not reveal 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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