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Date of the
present decision: 16 November 2006
The Committee against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Meeting on 16 November 2006,
Having concluded its consideration of complaint No. 288/2006, submitted to
the Committee against Torture by H. S. T. under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is H. S. T., a Mauritanian national, who was denied
asylum in Norway and issued with a departure order on 14 April 2004. His
whereabouts are currently unknown (see para. 5.2 below). He claims that if
he is returned to Mauritania, [FN1] he will be subjected to torture, cruel,
and inhuman and degrading treatment, which will constitute a violation by
Norway of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The application was initially
submitted by the complainant himself, but his lawyer provided comments on
the State party's submission on the complainant's behalf. [FN2]
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[FN1] Mauritania became a State party to the Convention against Torture on
17 November 2004 but did not make a declaration under article 22.
[FN2] On 29 January 2006, the complainant sent an e-mail to the Secretariat,
stating that he was in hiding and requesting that his e-mail or the address
of his lawyer be used for communication with him.
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1.2 On 3 February 2006, the Special Rapporteur on New Communications
rejected the complainant's request for interim measures of protection.
The Facts as Presented by the Author
2.1 The complainant claims to be a member of the prohibited movement Force
de Libération des Africains de Mauritanie (FLAM). This militant organisation
transmitted information to members in exile to alert international human
rights organisations and the international press about human rights
violations in Mauritania. His role in the organisation was "to recruit and
sensitise younger members".
2.2 In Mauritania, the complainant was arrested three times. In 1995, after
a student demonstration against "arabisation", he was detained for three
days but was not interrogated. In 1996, he was arrested and detained for 14
days in relation to his father's opposition to agricultural reform. From
1996 to 2001, he studied and graduated in engineering in Jordan. Upon his
return to Mauritania, he was again arrested in June 2001. He was
interrogated and allegedly tortured so as to make him explain his role in
the FLAM, and to reveal his brother's whereabouts (his brother obtained
asylum in Sweden on the basis of his role as secretary general of FLAM). He
was released after two days. In December 2001, he learned that he was wanted
by the police and left the country for Norway. In February 2002, he arrived
in Norway and applied for asylum on 21 February 2002.
2.3 On 21 February 2003, the complainant's application was denied by the
Directorate of Immigration (UDI). On 31 March 2004, his appeal to the
Immigration Appeals Board (UNE) was rejected. On 14 April 2004, he was
issued a departure order. He initiated judicial proceedings and requested an
injunction to stay the order to leave the country until his asylum case had
been reviewed by the courts. On 13 September 2005, the Court of First
Instance (Oslo byfogdembete) rejected his request. On 8 December 2005, the
Court of Appeal (Borgarting lagmannsrett) rejected his appeal. As the
complainant did not obtain an injunction to stay the order to leave the
country, he did not institute principal court proceedings. In addition, he
states that he cannot afford such proceedings.
The Complaint
3.1 The complainant claims that he fears inhuman and degrading treatment if
returned to Mauritania, as he would be arrested and tortured or even killed,
because of his political activism and his father's and brother's political
activities
3.2 He claims that he was ordered to leave Norway before his case was heard
by the courts, and that the Norwegian court system does not provide for
effective remedies. He adds that proceedings have been unreasonably
prolonged, and that this is solely the government's fault, which gave as
justification its lack of knowledge about Mauritania.
The State Party's Observations on Admissibility
4.1 On 3 April 2006, the State party provided its submission on
admissibility only. It explains that generally, applications for asylum are
assessed and decided in the first, administrative, instance by the
Directorate of Immigration (UDI). Administrative appeals are decided by the
Norwegian Immigration Appeals Board (UNE). All asylum seekers are appointed
attorneys by the State. The legality of an administrative act may be
challenged in Norwegian courts. Thus, asylum-seekers who find their
applications for political asylum turned down by the administration have the
possibility of filing an application before the Norwegian courts for
judicial review and thereby have the legality of the rejection examined.
Such an application is not subject to leave by the courts; neither is an
application for injunction.
4.2 A concerned party may apply to the courts for an injunction, requesting
an order to the administration to defer the deportation of the
asylum-seeker. According to the Enforcement of Judgements Act 1992, an order
for injunction may be granted if the plaintiff (a) demonstrates that the
challenged decision probably will be annulled by the court when the main
case is to be adjudicated, and (b) shows sufficient reasons for requesting
an injunction, i.e. that an injunction is necessary to avoid serious damage
or harm if the expulsion were enforced without the court having had the
opportunity to adjudicate in the main case. Where the contested decision is
a denial of asylum status, the second requirement in practice merges with
the first requirement, which means that in an asylum case an application for
injunction depends on whether or not the plaintiff can demonstrate that the
challenged decision probably will be annulled by the court in the subsequent
main case. In reviewing the legality of administrative asylum decisions the
courts have full jurisdiction. The judicial review covers all factual and
procedural aspects, as well as interpretation and application of the law.
4.3 On the facts, the State party submits that on 21 February 2003, the UDI
rejected the complainant's asylum application, as there were insufficient
grounds to demonstrate that he would be persecuted upon return. On 16 March
2004, the UNE rejected the complainant's appeal after oral hearings, during
which the complainant made extensive statements, and after examining all the
documents provided by the complainant, including his brother's statement and
that of Ms. Garba Diallo, professor at the International People's College (IPC),
Elsinore, Denmark. According to the UNE, the FLAM was established in March
1983 and was forbidden the following year. During recent years it has mainly
operated in exile, from its headquarters in Senegal. There are no reports
indicating that the FLAM has either a prominent role in Mauritania or any
political power. Neither are there any indications about persecution of
ordinary FLAM members. UNE was familiar with the fact that the political
opposition in Mauritania faces problems with the authorities, but there are
no reliable reports subsequent to 2002 indicating arrests of political
opponents, except for the arrest of one of the leaders of an organisation
who was working against slavery and was released after two days.
4.4 The UNE highlighted the information provided by the complainant that was
vague and inaccurate, regarding both his connection with the FLAM and his
relations with the Mauritanian authorities. He had explained that he was
wanted by the authorities mainly because he was suspected of being a member
of FLAM and because his brother was also a member, but provided no further
information. Thus, he was not found to have met the necessary conditions
under article 1 (A) of the UN Convention Relating to the Status of Refugees
to be granted asylum pursuant to section 16 of the Norwegian Immigration
Act. Neither did he meet the conditions of the non-refoulement clause of
section 15 of the Immigration Act, which provides the same protection as
article 3 of the ECHR and article 3 of the Convention. Following the
decision of the UNE the complainant presented a "request for renewed
assessment". The UNE saw no reason to reverse its former decision. In the
State party's view the complainant's case was assessed thoroughly, by both
the UDI and the UNE.
4.5 On 16 June 2005, the complainant requested a temporary injunction
pursuant to chapter 15 of the Norwegian Enforcement Act, to suspend the
implementation of the administrative decision to deny asylum or residence
permit on humanitarian grounds until the hearing of his main case before the
courts. He has not to date brought a main case before the Norwegian courts.
On 13 September 2005, the Court of First Instance (Oslo byfogdembete) denied
the injunction request. The decision was made after a full day of oral
hearings with extensive statements from the complainant, as well as
examination of five other witnesses', including the complainant's brother.
The Government called as an expert witness the regional advisor from
Landinfo (Country of Origin Information Center), who has personal and up to
date knowledge of the human rights situation in Mauritania. It also called
the executive officer from the UNE responsible for the complainant's case,
who testified about how the case was assessed and decided by the immigration
authorities.
4.6 The complainant appealed his request for an injunction to the Court of
Appeal (Borgarting lagmannsrett), which confirmed the first instance
decision on 8 December 2005. It concluded that after reviewing the facts of
the case that the complainant would not face a personal risk of persecution
if he were to be returned to Mauritania. The complainant did not contest
this decision by appealing to the Appeal Committee of the Supreme Court. The
complainant was represented by counsel throughout the court proceedings.
4.7 The State party submits that the complaint is inadmissible as manifestly
unfounded. In its view there is no substantial risk that the complainant
would be persecuted if returned to Mauritania. The mere allegation of
membership of FLAM, and the vague allegations that he was tortured during
his arrests in 1996 and 2001, do not amount to an arguable claim under the
Convention. The complainant has failed to provide any detailed information
of the alleged incidents or any medical evidence which supports his claim.
According to reliable resources, there is no reason to assume that an
ordinary member of FLAM would risk persecution contrary to the Convention
upon return.
The Complainant's Comments on the State Party's Observations
5.1 On 3 July 2006, the complainant commented that the State party has no
means of receiving information on the human rights situation in Mauritania
directly and that it only relies on outside sources for such information. He
submits that the Norwegian courts have only overruled administrative
decisions regarding asylum applications on a few occasions, and that this
raises a concern about the effectiveness of judicial remedies in the State
party. That the courts decided against his application, despite the evidence
of an expert with direct experience on the human rights situation in
Mauritania, shows the Norwegian court system's failure to provide for an
effective remedy. As a consequence of the State party's limited knowledge of
the situation in Mauritania, and given that the complainant's brother was
awarded refugee status in Sweden, following a fact-finding mission conducted
by Sweden, the complainant requests the Committee to gather its own
information regarding the factual basis of the complaint, under article 20
of the Convention.
5.2 On 6 July 2006, counsel advised the Secretariat that to her knowledge
the complainant is not currently in Norway. She states that he may have been
in France a while ago and it is possible that he is in France now. The
complainant had called the Secretariat in March 2006, to enquire about the
status of his case, and mentioned that he was then in Belgium.
Issues and Proceedings Before the Committee
Consideration of the Admissibility
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 and its rules of procedure.
6.2 Pursuant to article 22, paragraph 1, of the Convention, the Committee
may consider a communication from an individual who claims to be a victim of
a State party's violation of a provision of the Convention, providing the
individual is subject to that State's jurisdiction and the State has
declared that it recognizes the Committee's competence under article 22.
6.3 The Committee notes that the complainant appears to have left Norway.
Article 3 of the Convention prohibits return (refoulement) of a person by a
State party to another State where there are substantial grounds for
believing that the individual may be subjected to torture. In the present
case, as the complainant appears to be no longer within any territory under
the State party's jurisdiction, he cannot be returned to Mauritania by the
State party. Consequently, article 3 of the Convention does not apply.
Consideration of the complaint having become moot, the Committee finds it
inadmissible. In light of the aforementioned grounds of inadmissibility, the
Committee does not need to address the State Party's contention that the
complainant's claim under article 3 should be declared inadmissible as
manifestly unfounded.
6.4 Accordingly, the Committee finds, in accordance with article 22 of the
Convention and rule 107(b) of its revised Rules of Procedure, that the
complaint is manifestly unfounded, and thus inadmissible.
7. The Committee against Torture therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the complainant's counsel
and to the State party.
[Adopted in English, French, Spanish and Russian, 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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