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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 17 November 2006,
Having concluded its consideration of complaint No. 279/2005, submitted to
the Committee against Torture by C. T. and K. M. 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 complainants are C. T., a citizen of Rwanda, of Hutu ethnicity, and
her son, K. M., born in Sweden in 2003, both awaiting deportation from
Sweden to Rwanda. Although the complainants do not invoke specific articles
of the Convention, their claims appear to raise issues under article 3 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. They are represented by counsel [FN1].
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[FN1] The complainants have been represented by counsel since 22 March 2006,
after the initial submission.
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1.2 On 9 September 2005, the Committee requested the State party not to
deport the complainants to Rwanda while their case is pending before the
Committee, in accordance with rule 108, paragraph 1, of the Committee's
rules of procedures. On 7 November 2005, the State party acceded to the
Committee's request.
Factual background [FN2]
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[FN2] The complainants do not describe the facts in detail themselves: the
following account is a summary of the facts as described by the first named
complainant to the Swedish immigration authorities and set out in the
immigration authorities' decisions.
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2.1 Before the first named complainant's arrival in Sweden on 17 October
2002, she lived in Kigali. She and her brother had become members of the
PDR-Ubuyanja party sometime between February and May 2002. In April 2002,
they attended a meeting of the party. Following this meeting, the leaders of
this party, Mr. Bizimungu and Mr. Ntakirutinka, were arrested. In May 2002,
the first named complainant and her brother were arrested and she was
imprisoned in a container in Remera in Kigali, with six other women. She has
not seen her brother since. She was interrogated about her own involvement
and that of her brother's in the PDR-Ubuyanja party. She was repeatedly
raped, under the threat of execution, and became pregnant with her son K.
M., the second named complainant, who was born in Sweden.
2.2 In October 2002, a soldier helped her escape and took her to a religious
order, which helped her organise her flight to Sweden. On 17 October 2002,
she arrived in Sweden and requested asylum. On 23 March 2004, her request
was denied by the Migration Board on grounds of lack of credibility and
developments in Rwanda following the elections of 2003.In 2003, her son was
born. On 29 June 2005, the Migration Board's decision was confirmed on
appeal to the Aliens Appeals Board. On 7 September 2005, the Aliens Appeals
Board denied a new application.
The complaint
3.1 The first named complainant claims that if returned to Rwanda, she will
be immediately detained and tortured by the Rwandan Directory of Military
Intelligence (DMI), on account of her membership of the PDR-Ubuyanja party.
She would be raped again and interrogated in order to make her reveal how
she escaped. She fears that she and her son could even be killed.
3.2 She further claims that she will be tried by the Gacaca courts, which
were set up by the Government to avenge the genocide of 1994. She claims to
be one of the 760,000 Hutus who are due to be tried by these courts, in
particular for her alleged involvement in a massacre at Kigali Hospital.
State Party's Observations On Admissibility And The Merits
4.6 On 19 June 2006, the State party provided its submission on the
admissibility and the merits. It submits that the complaint is inadmissible
as manifestly ill-founded, and sets out the relevant provisions of the
Aliens Act, pointing out that several provisions reflect the same principle
as that laid down in article 3, paragraph 1, of the Convention. The national
authority conducting the asylum interview is naturally in a good position to
assess the information submitted by asylum seekers. On 9 November 2005,
temporary amendments were enacted to the 1989 Aliens Act. On 15 November
2005, these amendments entered into force and were to remain in force until
the entry into force of a new Aliens Act on 31 March 2006. The temporary
amendments introduced additional legal grounds for granting a residence
permit with respect to aliens against whom a final refusal-of-entry or
expulsion order has been issued. According to the new Chapter 2, section 5 b
of the Aliens Act, if new circumstances come to light concerning enforcement
of a refusal-of-entry or expulsion order that has entered into force, the
Swedish Migration Board, acting upon an application from an alien or of its
own initiative, may grant a residence permit, inter alia, if there is reason
to believe that the intended country of return will not be willing to accept
the alien or if there are medical obstacles to enforcing the order.
4.7 Furthermore, a residence permit may be granted if it is of urgent
humanitarian interest for some other reason. When assessing the humanitarian
aspects, particular account shall be taken of whether the alien has been in
Sweden for a long time and if, on account of the situation in the receiving
country, the use of coercive measures would not be considered possible when
enforcing the refusal-of-entry or expulsion order. Further special
considerations shall be given to a child's social situation, his or her
period of residence in and ties to the State party, and the risk of causing
harm to the child's health and development. It must also be considered
whether the alien committed crimes and a residence permit may be refused for
security reasons. Decisions made by the Migration Board under Chapter 2,
Section 5 b, as amended, are not subject to appeal.
4.8 On the facts, the State party provides the reasoning behind the
Migration Board's decision to reject the application for refugee status
under chapter 3, section 2 of the Aliens Act, for residence permits as
aliens otherwise in need of protection under chapter 3, section 3 and for
residence permits on humanitarian grounds under chapter 2, section 4,
paragraph 1, sub-paragraph 5. It considered that: the general political
situation in Rwanda did not per se constitute a ground to grant the
complainants asylum; according to the EU special representative in the
region there had been positive developments in Rwanda following the general
elections in 2003; the PDR-Ubuyanja party was banned before the elections in
2003 and unknown persons previously suspected of involvement in the party or
persons who have been active in the party at a low level cannot be
considered to run any risk of persecution or harassment; and the credibility
of certain of the first-named complainant's statements was doubtful. The
State party submits that, while both the Migration Board and Aliens Appeals
Board found reason to question the credibility of certain statements made by
the first named complainant, this was not the decisive factor for their
decisions. Indeed, the Migration Board found that irrespective of the
factors which detracted from the complainant's credibility, the developments
in Rwanda after the 2003 elections had been such as to render it unlikely
that she would be at risk of persecution due to her membership of the
PDR-Ubuyanja party.
4.9 Since the new application to the Aliens Appeal Board was denied on 7
September 2005, another new application was lodged on 23 September 2005. On
21 November 2005, it was transferred from the Aliens Appeals Board to the
Migration Board for determination, in accordance with the temporary
legislation contained in chapter 2, section 5 b of the 1989 Aliens Act. On 3
March 2006, the Migration Board denied the application, as the medical
certificates furnished by the complainants (including a psychologist's
certificate of 31 July 2005) did not show that the first named complainant
suffered from such a serious mental illness or comparable condition that she
could be granted a residence permit on medical grounds. As regards the
second named complainant, who was then nearly three years, the Board was of
the view that he had not developed such close ties with Sweden that he could
be granted a residence permit on that ground. On 16 March 2006, the
complainants lodged an additional application with the Migration Board for a
residence permit under the temporary legislation contained in chapter 2,
section 5 b of the 1989 Aliens Act. On 15 August 2006, the State party
subsequently informed the Committee that by a decision of 5 July 2006, the
Board found that the complainants were not entitled to residence permits.
While it considered medical and psychological opinions not previously
presented to the Swedish authorities, it found that no new circumstances had
emerged and that there was no medical obstacle to enforcing the expulsion
order. In addition, concerning the second named complainant, it found that
he had not developed such ties to Sweden that he should be granted a
residence permit.
4.10 On the merits, the State party endorses the finding of both the
Migration Board and the Aliens Appeal Board that the first named complainant
was vague in her statement regarding her involvement in the PDR-Ubuyanja
party. She did not provide details about the party, with the exception of
the name of the party leader, former President Pasteur Bizimungu, and that
of the secretary general, former Minister Charles Ntakirutina. She did not
give a detailed account of the activities and programme of the party but
merely stated that the party wished to "rebuild the country and give
everyone their rights". In addition, she amended the information she gave
with respect to when she became a member of the party during the
proceedings. Initially, she claimed to have become a member in May 2002,
after attending a meeting. However, after her first application was turned
down by the Migration Board, she amended the statement and claimed to have
become a member at an earlier stage, in February or March 2002. The State
party notes would like to point to the fact that the amended statement is
inconsistent with the statement before the Migration Board that she attended
a party meeting in April 2002 to become a member.
4.11 The State party highlights the fact that, although there are several
international reports, regarding the arrest of PDR-Ubuyanja members, there
are no such reports to support the claim that the first named complainant
and her brother were arrested and detained. The State party also notes that,
according to international reports, many of the individuals who were
arrested due to their alleged involvement in the party have been released.
Only a small number of people have been sentenced to imprisonment by
criminal courts because of their involvement in the party.
4.12 As to the document invoked as evidence by the complainant drawn up by
Pelicicn Dufitumukiza, a former representative of LIPRODHOR [FN3] , the
State party notes that there is a factual inconsistency in this document if
compared to what the complainants have stated both in the national
proceedings and before the Committee. Mr Dufitumukiza refers to a LIPRODHOR
journal from July 2001, according to which from that day there is no member
of the C. T. family still alive. However, the complainants claim that the
first named complainant and her brother were arrested in the spring of 2002,
i.e. almost a year after the date of the journal in which LIPRODHOR claims
to have found information regarding her case. It is not clear from the
document who informed LIPRODHOR about the abduction of the first complainant
and her brother.
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[FN3] The State party acknowledges that this is Rwanda's largest human
rights organization.
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4.13 As to the claim relating to the Gacaca tribunals, the State party
submits that, while the system has been the subject of criticism from a
human rights perspective, the international community at large, including
the European Union, has given it its support. Regarding the allegation that
the first named complainant is in fear of facing trial before the Gacaca
tribunals for participation in the genocide in 1994, the State party draws
the Committee's attention to the fact that this allegation was made for the
first time in the so called new application filed before the Aliens Appeals
Board on 23 September 2005, and then only by reference to an attached letter
from a M. U. to the first complainant. The complainants have not provided
any details regarding this allegation either before the national authorities
or before the Committee, and there is no conclusive evidence, substantiating
the alleged fear. The submitted documents drawn up by Mr. Joseph Matata, a
representative of Centre du lutte contre "impunite et l'injustice au
Rwanda", only refer to the Gacaca tribunals in general and do no support the
allegation that the first complainant personally would be at risk. The only
evidence in support of this claim is the letter from M. U., referred to
above. The letter, which is undated and unsigned, does not give any specific
details of the alleged criminal investigation or of any pending criminal
charges in Rwanda that concern the first named complainant. In addition, it
does not appear from the letter who the author is or how he or she received
the information. In the State party's view, the letter cannot therefore be
regarded as reliable evidence that, in case of expulsion, the first named
complainant would risk indictment for genocidal acts before the Gacaca
tribunals, let alone that she would be at risk of torture.
4.14 The State party recalls the Committee's jurisprudence that while past
torture is one of the elements to be taken into account when examining a
claim under article 3 of the Convention, the aim of the examination is to
determine whether the complainants would risk being subjected to torture if
returned to their country at the present time [FN4] . Thus, even if it were
to be established that the first named complainant had been subjected to
ill-treatment in 2002, it does not prove her claim that their removal to
Rwanda would expose them to a foreseeable, real and personal risk of being
tortured thereby constituting a violation of article 3. The State party
acknowledges that reports had been made that military troops, until their
withdrawal in October 2002, abducted women and children from villages they
raided to perform labour, military services and sexual services.
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[FN4] X, Y and Z v. Sweden, Complaint No. 61/1996, Views adopted on 6 May
1998, para. 11.2
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4.15 The State party submits that even if the first named complainant had
proved that she was a member of the PDR-Ubuyanja party, and that she was
arrested and detained and managed to escape, the political situation in
Rwanda has undergone significant changes since the complainants' arrival in
Sweden, especially since the 2003 elections. The party is a proscribed
political party and its activities are subject to monitoring by the
authorities. However, there is no objective evidence to show that ordinary
members or relatives of members of the party are at risk from the
authorities According to her own statement, she only attended one party
meeting. If the first named complainant had became a member of the party, it
must have been at a very low level and thus she would not be at risk from
the authorities. For these reasons, the State party concludes that the
complainants have not shown that there is a foreseeable real and personal
risk of torture if returned to Rwanda.
Complainant's Comments on the State Party's Observations on the
Admissibility and the Merits
5.1 On 28 September 2006, the complainants refer to the Migration Board
decision of 5 July 2006, and highlight its finding that there was no medical
obstacle to returning the complainants to Rwanda. However, it did not
consider what the effects of being expelled would have on their health in
Rwanda. The Board made this decision despite a medical report, of 2 June
2006, which confirmed the first complainant's claims of rape and diagnosed
her as suffering from PTSD.
5.2 As to the State party's claim that the first named complainant's lack of
detail regarding the PDR-Ubuyanja party demonstrates her lack of
credibility, the complainants argue that a document in Danish entitled "PDK……Parti
Democratique pour Ie Renouveau-Ubuyanja (PDR-Ubuyanja) Udlaendingestyrelsen",
dated 19 June 2003, which provided background information on this party, was
available to the Migration Board. According to this document, the
PDR-Ubuyanja party never developed into a fully fledged party: No party
programme was ever published, no membership cards issued and no formal
membership list established. Interest in supporting the party was shown by
attending the few private meetings that were organised. In April 2002, the
first named complainant attended a meeting in Kigali with her brother, where
they met and were recruited by Mr. Ntakirutinka. The DMI would have known
that the first named complainant's brother was Mr. Ntakirutinka's employee,
and would, on that basis alone, have singled out both brother and sister for
arrest. The same document also stated that persons who were related to
members or were suspected to be members themselves would have difficulties
in Rwanda, as they might be aware of PDR-Ubuyanja documents of interest to
the authorities.
5.3 According to the complainants, the Swedish authorities paid little
attention to the position of the UNHCR outlined in its paper of January
2004, published after the elections of 2003. It stated that early in 2004,
almost two years after the arrest of Pastor Bizimungu and Mr. Ntakirutinka,
those associated with the PDR-Ubuyanja party were at greatest risk inside
the country . On the issue of victims of rape, the complainants quote from
the paper arguing that, "The crime of rape itself and the manner in which it
was committed qualify as a serious form of torture and may warrant continued
international protection……….The victims should favourably be considered for
the granting of refugee status on the ground that their refusal to return to
Rwanda is due to compelling reasons arising from previous persecution……"
5.4 The first named complainant provides an account of what happened to her
while in detention and a letter from a woman, who allegedly was detained at
the same time, and corroborates her claim that she was tortured during her
detention. Since then, this woman has received refugee status in France.
According to the complainants, this evidence was not presented during the
domestic proceedings, as upon receipt the first named complainant's "case
had been finally rejected and there was talk of an amnesty for families with
children so she set her hopes on that".
5.5 As to the State party's argument that the statement from M. U. was
undated and unsigned, the complainants explain that only the English
translation was handed in to the Swedish authorities and attach for the
Committee's attention the original handwritten letter signed by M. U. and M.
U. was the first named complainant's neighbour in Kigali. When the
complainant feared that she would be sent back to Rwanda, she contacted M.
U. and M. U. expressed concern about her safety should she be expelled to
Rwanda because M. U. had heard that her name had been mentioned in the
Gacaca procedure as one of the suspects involved in the massacre of Tutsis
at the CHK hospital in Kigali in April 1994. Afterwards, M. U. wrote his
letter, which is signed in the original. On 13 August 2006, C.T. telephoned
M. U., as a result of which M. U. sent an e-mail to explain why it was not
possible to obtain a document with the first named complainant's name on it
as one of the suspects. M. U. wrote that the list is confidential and has
not been published for fear that suspects will abscond. M. U. has not
responded to a further request for information, to provide the name of the
person that heard that the complainant was a suspect, the date this occurred
etc.
5.6 As to the State party's argument that the first named complainant only
raised the fact that she was accused before the Gacaca court at a late
stage, the complainants argue that this can be explained by the fact that
the Gacaca process has been going through various developments and that in
2005, more extensive witness material was gathered. It was only upon contact
with M. U. that she was informed of this information. Regarding the
procedure before the Gacaca courts, the complainants refer to a report by
Penal Reform International of June 2006, which states inter alia that the
Gacaca "raises serious misgivings regarding the situation of accused
persons".
5.7 As to the argument that no evidence exists that PDR-Ubuyanja party
members were arrested or detained since 2003, counsel states that he
represented a Rwandan asylum seeker before the Swedish authorities who had
been subjected to torture while being interrogated on his involvement in the
PDR-Ubuyanja party in 2004. This individual was considered credible and was
granted refugee status by the Swedish authorities in 2005. As to the fact
that neither the first named complainant nor her brother were cited as
detainees on any of the Amnesty lists, the complainants submit that these
lists were incomplete and that, according to the Danish document referred
to, "some of the detainees on the Amnesty list had in reality no connection
with RDR-Ubuyanja".
5.8 According to the complainants, the discrepancy in the dates in the
letter from the representative of the LIPRODHOR was a typographical error
and a new certificate is submitted to the Committee with the correct date.
Finally, the complainants submit that a return to Rwanda in light of the
heinous circumstances of the first complainant's pregnancy, where they have
no immediate family, may have serious consequences for C. T.'s son as his
mother may not be able to give him the help and support that he needs. He is
currently attending a pre-school and is being investigated to ascertain
whether he suffers from a form of autism.
Issues and Proceedings Before the Committee
Consideration of 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. 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. It notes the State
party's confirmation, in the submission of 15 August 2006, that domestic
remedies have been exhausted.
6.2 The Committee finds that no further obstacles to the admissibility of
the complaint exist, declares it admissible and thus proceeds to its
consideration on the merits.
Consideration of the Merits
7.1 The issue before the Committee is whether the removal of the
complainants to Rwanda would violate 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 to torture.
7.2 In assessing the risk of torture, the Committee takes into account all
relevant considerations, including the existence in the relevant State of a
consistent pattern of gross, flagrant or mass violations of human rights.
However, the aim of such determination is to establish whether the
individuals concerned would be personally at risk in the country to which he
or she would return. 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 would be in danger of being subjected to torture upon his or her
return to that country; additional grounds must exist to show that the
individual concerned would be personally at risk. Similarly, the absence of
a consistent pattern of gross violations of human rights does not mean that
a person cannot be considered to be in danger of being subjected to torture
in his or her specific circumstances.
7.3 The Committee recalls its General Comment No.1 on article 3, which
states that the Committee is obliged to assess whether there are substantial
grounds for believing that the complainant would be in danger of being
subjected to torture were he/she to be expelled, returned or extradited, 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. The risk need not be highly probable, but it must be personal and
present. In this regard, in its jurisprudence the Committee has determined
that the risk of torture must be foreseeable, real and personal.
7.4 The Committee notes the claim that if the complainants are returned to
Rwanda they will be detained and tortured, on the basis of the first named
complainant's involvement in the PDR-Ubuyanja party, for which reason she
was detained and subjected to torture. She also fears that she may be tried
before the Gacaca courts. On this latter issue, without wishing to consider
whether the Gacaca courts meet international standards of due process, the
Committee considers that fear of a future trial before them is in itself
insufficient to amount to a reasonable fear of torture.
7.5 As to the first named complainant's claim of past torture due to her
political activism, the Committee notes that the State party questions her
credibility due to her vagueness, inconsistency and lack of evidence in her
account of and involvement in the PDR- Ubuyanja party and the argument that
she would not suffer torture given the developments after the elections in
2003. The Committee notes that the State party did not contest, during the
domestic proceedings, nor in its submission to the Committee, the first
named complainant's claim (supported by two medical reports) that she was
repeatedly raped in detention, as a result of which she became pregnant, and
gave birth to her son in Sweden. In fact, on a review of the decisions of
the domestic authorities, it would appear that these medical reports were
not taken into account at all and that the issue of whether or not the
complainant had been raped and the consequences thereof for her and her son
were not considered. Thus, on the basis of the medical evidence provided,
and the State party's failure to dispute the claim, the Committee considers
that the first named complainant was repeatedly raped in detention and as
such was subjected to torture in the past. On examining the dates of her
detention and the date of birth of her son, the Committee considers it
without doubt that he was the product of rape by public officials, and is
thus a constant reminder to the first named complainant of her rape.
7.6 On the State party's general argument that the first named complainant
is not credible, the Committee recalls its jurisprudence that complete
accuracy is seldom to be expected by victims of torture and that such
inconsistencies as may exist in the complainant's presentation of the facts
are not material and do not raise doubts about the general veracity of her
claims, especially since it has been demonstrated that she was repeatedly
subjected to rape in detention. [FN5] The Committee also takes into account
the revised letter from LIPRODHOR (para. 5.8), the authenticity of which has
not been contested by the State party, which attests to the first named
complainant's arrest along with her brother by the Directory of Military
Intelligence.
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[FN5] Alan v. Switzerland, Case no. 21/1995, Decision adopted on 8 May 1996,
Tala v. Sweden, Case no. 43/1996, Decision adopted 15 November 1996, Kisoki
v. Sweden, Case no. 41/1996, Decision adopted on 8 May 1996.
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7.7 As to the general situation in Rwanda, the Committee considers that
information provided by the complainants demonstrates that ethnic tensions
continue to exist, thus increasing the likelihood that the first named
complainant may be subjected to torture on return to Rwanda. For the above
reasons, the Committee considers that substantial grounds exist for
believing that the complainants would be in danger of being subjected to
torture if returned to Rwanda.
8. 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 complainants to
Rwanda would amount to a breach of article 3 of the Convention.
9. The Committee urges the State party, in accordance with rule 112,
paragraph 5, of its rules of procedure, to inform it, within 90 days from
the date of the transmittal of this decision, of the steps taken in response
to the decision expressed above.
[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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