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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 1 May 2007,
Having concluded its consideration of complaint No. 296/2006, submitted to
the Committee against Torture by E. V. I. 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 under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is E. V. I., an Azerbaijani national born in 1979,
currently awaiting deportation from Sweden. He claims that his forced return
to Azerbaijan would constitute a violation by Sweden of article 3 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment.
He is not 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 13 June 2006,
and requested it, under rule 108, paragraph 1 of the Committee's rules of
procedure, not to expel the complainant to Azerbaijan while his complaint is
under consideration by the Committee. The State party subsequently informed
the Committee that the complainant had not been deported.
The Facts as Presented by the Complainant
2.1 The complainant graduated from a university in Azerbaijan with a degree
in law and then pursued a masters degree in the Netherlands. As a university
student in Azerbaijan, he became actively involved in politics and joined
the "Musavat" opposition party, where he worked as a legal consultant. He
also worked as assistant to the chief editor in the "Yeni Musavat"
newspaper. [FN1]
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[FN1] The complainant notes that the chief editor was arrested and sentenced
to 5 years imprisonment in 2003.
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2.2 Shortly after his return to Azerbaijan from the Netherlands, the
complainant was called to appear at the offices of the Ministry of National
Security, where he was kept in custody for two days, accused of "high
treason and espionage against the Azerbaijani government". In particular, he
was accused of spreading information in Europe about serious human rights
violations in Azerbaijan. During the two days that he was in custody, he was
allegedly beaten by officials, as a result of which he developed kidney
problems, from which he has continued to suffer after his arrival in Sweden,
and "black tumours". He was released due to lack of evidence. He attempted
to file a complaint about the incident with the city prosecution office but
the officers there refused to register the complaint and told him to keep
silent about the incident and not to make any further trouble. The
complainant states that he was expelled from the Bar association in
Azerbaijan on 24 December 2002 due to persecution by the Ministry of
National Security.
2.3 In the run-up to presidential elections which were held on 15 October
2003, the complainant was actively involved in the election campaign on
behalf of the leader of the "Musavat" opposition party. On 2 July 2003, he
was detained by three officers and led to a police station, where the
officers referred to the fact that his future wife was half Armenian, and
accused him of being a spy working for the Armenian government. The
allegations raised during his first period of detention were raised again.
He was kept in custody from 2 to 4 July 2003. The mother of the complainant,
who had witnessed his arrest, contacted the complainant's friends and
colleagues, who called the ANS TV channel. As a result, several journalists
went to the police station and the incident was broadcast in local news. The
complainant was released from custody on the same evening of the said
broadcast.
2.4 On 18 July 2003, the complainant celebrated his wedding. The same
officers from the Ministry of National Security disrupted the wedding
celebrations, shouting through the microphones, and one of them physically
assaulted the complainant's wife. That same day, the complainant and his
wife escaped Azerbaijan to the Dagestan autonomous republic of the Russian
Federation. His wife suffered trauma and internal bleeding as a result of
the assault and was operated on at Derbend city hospital in Dagestan. From
Derbend city, the complainant and his wife travelled to Moscow. On 9 August
2003, they left Russia and arrived in Sweden three days later. Upon arrival
in Sweden, on 12 August 2003, they applied for asylum.
2.5 On 22 December 2004, their application for asylum was dismissed by the
Migration Board, which ordered that the complainant and his wife be expelled
to their country of origin. The decision of the Migration Board was appealed
to the Aliens Appeals Board but the appeal, which included a petition on
behalf of the newborn child of the complainant and his wife, was rejected on
28 November 2005. The Migration Board re-examined the case on its own
initiative under a new temporary law introduced on 15 November 2005 and
concluded, by decision dated 19 May 2006, that no resident visa should be
granted on humanitarian grounds.
The Complaint
3. The complainant alleges that if forcibly returned to Azerbaijan, he would
suffer a risk of torture, in violation of article 3 of the Convention. He
fears being tortured because of his prior treatment at the hands of the
Azerbaijani authorities because of his membership of, and activities on
behalf of, an opposition political party. He refers to a criminal
investigation against him, which commenced since his departure from
Azerbaijan. He contends that the Swedish authorities disregarded his
personal circumstances and that their decisions refer to general arguments
concerning the situation in Azerbaijan only and not his particular case.
State Party's Observations on the Admissibility and the Merits
4.1 On 11 December 2006, the State party commented on the admissibility and
merits of the communication. On the facts, the State party indicates that
the complainant applied for asylum on 13 August 2003.
4.2 On claiming asylum, the complainant and his wife were not able to
produce identity papers. An official at the Swedish Migration Board recorded
that the complainant's wife had had to undergo emergency surgery on her
stomach after having been beaten in Azerbaijan. Later on during the
proceedings, the complainant submitted an identity card from a young
lawyers' association and a copy birth certificate, together with some
documentation in respect of his wife.
4.3 An initial interview was conducted with the complainant and his wife on
7 November 2003. During the interview, the complainant set out the facts of
his case largely as set out above. He stated that shortly after his arrival
in Sweden, his father, who was well known due to his high position in the
oil industry in Azerbaijan, was assaulted by the Security Police. His father
was taken to hospital where he died on 25 August 2003. According to the
death certificate, his father died of a heart condition, although he had
never suffered from heart problems before. The complainant stated that his
mother had been dismissed from her work. The complainant's wife also stated
that after they had left Azerbaijan, her mother, who had been in hiding in
Azerbaijan for quite a long time, was arrested and subjected to physical
abuse. Her mother died in prison as a result of the beatings.
4.4 A second interview, which took nearly 3 hours, was conducted with the
complainant on 26 March 2004 in the presence of counsel. The complainant
gave further details concerning his treatment at the hands of the
authorities, including having been made to stand for 35-36 hours during the
period of detention immediately following his return from the Netherlands.
He stated that he was hit when he tried to sit down and that the Security
Police use a kind of boxing glove to prevent leaving traces of the abuse. He
stated that he had also been abused during his second period of detention
but that he had not suffered any serious injuries. He stated that he had
first come to the attention of the authorities in the winter of 2000 when he
took part in organizing a demonstration. He received phonecalls but was not
arrested. He recounted two instances where the Security Police had searched
his office. He noted that his mother had received notice a month previously
that the Ministry of the Interior had issued a warrant for his arrest for
being a traitor to his country. A second interview was conducted with the
complainant's wife on 18 May 2004 in the presence of counsel. The
complainant's wife submitted the complainant's Musavat party membership card
and a warrant for his arrest dated 15 January 2004.
4.5 On 22 December 2004, the Migration Board dismissed the applications of
the complainant and his wife and ordered that they be expelled to their
country of origin. The Migration Board considered Azerbaijan's status as a
member of the Council of Europe and the fact that international and domestic
NGOs are allowed to work in the country. It concluded that while there
remain some deficiencies with regard to respect for human rights in
Azerbaijan, including with regard to the treatment of opposition political
parties by the police, the general situation in Azerbaijan did not per se
constitute a ground to grant asylum to the complainant and his wife. With
regard to the particular circumstances alleged by the complainant, the
Migration Board found that he did not hold such a prominent position within
the Musavat Party to warrant particular attention from the authorities. The
authenticity of the arrest warrant dated 15 January 2004 was questioned.
4.6 On 3 June 2005, the complainant and his wife appealed the decision of
the Migration Board to the Aliens Appeals Board. They submitted further
supporting documentation, including a protocol from the Security Police
dated 2 July 2003, (which stated that the complainant, who was referred to
as the vice chief editor of the Yeni Musavat newspaper, had been placed in
detention due to suspicions of having spread secret information detrimental
to State security), together with certificates concerning the complainant
from various human rights organisations in Azerbaijan.
4.7 On 1 July 2005, the complainant and his wife lodged an application for
asylum on behalf of their newborn child. The Aliens Appeals Board considered
this application along with the appeal of the complainant and his wife.
4.8 On 28 November 2005, the Aliens Appeals Board rejected the appeal on
similar grounds to those advanced by the Migration Board. The Aliens Appeals
Board also questioned the complainant's credibility. It concluded that the
complainant's Musavat membership card was not authentic and that two of the
certificates presented by the complainant from Azerbaijani organisations
were not genuine. The Aliens Appeals Board based its conclusions on its
prior general knowledge of Musavat membership cards, a signature submitted
to it in person by an alleged signatory of one of the certificates, together
with direct telephone and email contact with an alleged signatory of another
of the certificates. Further, the Board had received confirmation that the
chief editor of the Musavat newspaper denied that the complainant "had
worked as a vice chief editor or as a writer for the newspaper". It was not
satisfied by the complainant's explanations, which tended to question the
veracity of the persons who had allegedly provided the certificates in the
first place, when confronted by the information gathered by the Board.
4.9 The Migration Board re-examined the case in respect of the complainant
and his family on its own initiative under a new temporary law introduced on
15 November 2005 and concluded, by decision dated 19 May 2006, that no
resident visa should be granted on humanitarian grounds.
4.10 On the admissibility, and with regard to whether domestic remedies have
been exhausted in this case, the State party notes that on 7 June 2006 the
complainant's wife lodged a further application with the Migration Board for
residence permits for herself and her family. The State party notes that
such application has not yet been considered and that a decision by the
Migration Board can be appealed to a migration court. The State party leaves
it up to the Committee to decide whether all domestic remedies have been
exhausted in this regard. Finally, it argues that the communication is
inadmissible under article 22, paragraph 2, of the Convention, on the basis
that it is manifestly unfounded and so does not rise to the basic level of
substantiation required for purposes of admissibility for an alleged breach
of article 3. The State party refers, for this conclusion, to its arguments
on the merits, set out below.
4.11 On the merits, the State party contests that the communication reveals
a violation of the Convention. It refers to the Committee's jurisprudence
[FN2] that the existence of a pattern of gross, flagrant or mass violations
of human rights in a country does not as such constitute sufficient grounds
for determining that a particular person would be at risk of being subjected
to torture upon his return to that country. Additional grounds must exist to
show that the individual would be personally at risk.
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[FN2] Communication No.150/1999, S.L. v. Sweden, Views adopted on 11 May
2001, para. 6.3 and Communication No.213/2002, E.J.V.M. v. Sweden, Views
adopted on 14 November 2003, para. 8.3
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4.12 With regard to the general situation concerning human rights in
Azerbaijan today, the State party points to Azerbaijan's membership of the
Council of Europe and that Azerbaijan has ratified several major human
rights instruments, including the Convention. While noting reports of human
rights abuses, including arbitrary detentions and incidents of beating and
torture of persons in custody by the security forces, particularly of
prominent activists, the State party shares the view of the Migration Board
that the situation in Azerbaijan at present does not warrant a general need
for protection for asylum seekers from Azerbaijan.
4.13 As to the personal risk of torture, the State party refers to the
Committee's jurisprudence [FN3] that for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured in the country to which he is returned. In
addition, it is for the complainant to present an arguable case and the risk
of torture must be assessed on grounds that go beyond mere theory or
suspicion although it does not have to meet the test of being highly
probable [FN4] . It draws the Committee's attention to the fact that several
provisions of both the 1989 Aliens Act and the new Aliens Act, which came
into force in March 2006, reflect the same principle as that laid down in
article 3, paragraph 1, of the Convention. The State party points out that
the Swedish authorities therefore have to apply the same kinds of test as
the Committee will apply when examining a subsequent complaint under the
Convention.
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[FN3] Communication No.103/1998, S.M.R. and M.M.R. v. Sweden, Views adopted
on 5 May 1999, para. 9.7.
[FN4] General Comment No. 1 concerning implementation of article 3 of the
Convention, A/53/44, Annex XI, adopted on 21 November 1997; Communication
No.150/1999, S.L. v. Sweden, Views adopted on 11 May 2001, para.6.4 and
Communication No.265/2005, A.H. v. Sweden, Views adopted on 16 November
2006, para. 11.6
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4.14 The State party claims that the complainant's return to Azerbaijan
would not entail a violation of article 3 of the Convention. It submits that
great weight must be attached to the decisions of the Swedish migration
authorities, as they are in a very good position to assess the information
submitted in support of an asylum application and to assess the credibility
of an applicant's claims. The State party notes that the Migration Board
conducted two interviews with the complainant and had ample time to assess
the facts and documentation concerning the application.
4.15 In addition, the State party submits that there are serious doubts
about the complainant's general credibility and the reliability of the
information submitted. The State party submits a report, dated October 2006,
obtained through the Swedish embassy in Ankara, Turkey, from an
international organization working in Azerbaijan with, it is reported, an
excellent local network. The report states that the complainant has never
been a member of the Musavat party and that the documents submitted by the
complainant in support of his asylum applications are false. The report
examines each of the complainant's Musavat party membership card, certain of
the certificates relating to the complainants' membership of the Musavat
party and his position within the Musavat party newspaper, the arrest
warrant dated 15 January 2004 and the protocol concerning his detention
dated 2 July 2003 in turn and concludes that they are each false. The report
states that the complainant has never been wanted in relation to the
commission of a crime in Azerbaijan as there is no information concerning
him in the state registration organization. The report further states that
the complainant has never been a member of the Lawyers Association of the
Azerbaijan Republic and that the father of the complainant died in 1996,
rather than on 25 August 2003, as was claimed in his initial interview
before the Migration Board.
4.16 The State party also claims that the complainant's account of the
events in Azerbaijan contain a number of inconsistencies, primarily with
regard to his position on the staff of the Musavat newspaper, and that the
complainant's story concerning the beatings and the importance of his
political activities have escalated both during the course of his asylum
application and before the Committee. The State party notes that the
complainant has not presented a medical certificate regarding the kidney
problems he claims he continues to suffer from after his arrival in Sweden.
4.17 The State party submits that the complainant has not shown substantial
grounds for believing that he will run a real and personal risk of being
subjected to treatment contrary to article 3 of the Convention if deported
to Azerbaijan. It contends that even if the complainant could be considered
to have been a member of the Musavat party, he could not be considered to be
a prominent person at risk from the authorities based on his activities and
level of responsibility within the party, including the Musavat newspaper.
The State party notes that the Musavat party is an officially registered and
legal organization and that party membership is not a criminal offence. It
emphasizes that almost four years have passed since the complainant's
political activities are said to have taken place and that in that time a
number of presidential pardons have been issued in favour of certain persons
whom the Council of Europe considers to be political prisoners. It remarks
that the Musavat party has lost much of its position as a major opposition
party, having won only 5 of the 125 seats in the November 2005 parliamentary
election.
Complainant's Comments on the State Party's Observations on the
Admissibility and the Merits
5.1 By letter of 6 February 2007, the complainant reiterates that the
admissibility criteria have been met. With regard to the merits, and
specifically the State party's concerns about his veracity and its claim
that the documentation submitted by the complainant is false, the
complainant points out that many people in Azerbaijan are afraid to get
involved in such cases as it would possibly lead to investigation by the
police or the national security services. With regard to the complainant's
position in the Musavat newspaper, he states that he was not allowed to
explain his position at the newspaper during his initial interview on the
basis that he would be afforded an opportunity to do so at his second
interview.
5.2 The complainant criticizes the report obtained by the State party
through its embassy in Ankara, stating that the investigation was not
conducted discreetly and many people were aware that somebody was seeking
information about him. He asserts that a report resulting from an
investigation conducted in this way should not be relied upon. With regard
to the State party's concerns about contradictions in his statements, the
complainant states that the translators offered to them were mostly
Azerbaijanis with Iranian origins who speak the old Azeri language mixed
with Persian which is hard for asylum seekers to understand. He notes that,
in consultation with his counsel, he made 17 corrections to the minutes of
one of his interviews.
5.3 In addressing the fact that the complainant has not presented a medical
certificate for consideration, he states that both he and his wife contacted
Växjö hospital in Sweden several times to request documents concerning his
medical condition but the documents were not forthcoming. He notes that, at
his request, his former counsel had also attempted to get these documents
without success.
5.4 With regard to the authenticity of the arrest warrant dated 15 January
2004, the complainant states that the police authorities in Azerbaijan work
differently to their counterparts in Europe in that all cases are not
registered, particularly those relating to persons involved in politics, and
information concerning arrest warrants cannot necessarily be obtained in all
cases. The complainant believes that the authorities probably did not
register the case against him in order to create an image of respect for
procedural rights.
Additional Comments by the State Party
6.1 On 22 March 2007, the State party submitted the following additional
comments.
6.2 With regard to the interview process before the Swedish migration
authorities, the State party notes that the complainant was interviewed
twice. On the first occasion, the interview lasted 1 hour and 45 minutes and
an interpreter translated into Russian. The investigator read out the
minutes to the complainant and the complainant stated that everything was
correct. On the second occasion, the interview lasted 2 hours and 55 minutes
and an interpreter translated into Azeri. The complainant, through his
counsel, submitted comments on what he considered to be errors in the
minutes of this interview on 17 June 2004. On the second occasion, the
interview was conducted in the presence of the complainant's counsel. The
complainant also submitted comments on the translation of some official
documents on 21 October 2005. The State party submits that the complainant
therefore had ample time to explain and develop his reasons for seeking
asylum in Sweden. The State party maintains that the asylum investigation
was carried out properly and thoroughly, the complainant having had the
opportunity to correct any possible misunderstanding of his statements.
6.3 With regard to the complainant's criticism of the report obtained by the
State party through its embassy in Ankara, the State party stresses that
there is nothing to indicate that there are any reasons for questioning the
reporting organisation's working methods or the qualities of its inquiries
or conclusions and so sees no reason not to rely on the result of the
inquiry made in the present case. As regards the complainant's assertion
that he could not obtain a medical certificate in Sweden, the State party
responds that there is nothing to indicate that it would have been
impossible for him to acquire such a document following a medical
examination upon arrival in Sweden.
Issues and Proceedings Before the Committee
Consideration of Admissibility
7.1 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.
7.2 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.
7.3 With regard to the requirement, under article 22, paragraph 5 (b), of
the Convention, that all available domestic remedies be exhausted, the
Committee notes that the complainant's wife has lodged an additional
application before a national body seeking residence permits on behalf of
herself and her family. The Committee further notes that as the present
communication was lodged by the complainant only, the State party has, as
far as the circumstances permit, expressly limited itself to addressing the
position concerning him only. It observes that the State party has not
provided any further information concerning the particular basis of the
additional national application made by the complainant's wife or whether it
may be considered to be effective. The Committee further notes that the
State party has not, placed any emphasis on this issue, or made any
particular objection in this regard, preferring instead to leave it up to
the Committee to determine whether all available domestic remedies have been
exhausted. Accordingly, the Committee finds it appropriate to determine that
the requirements of article 22, paragraph 5 (b), of the Convention have been
met as regards the complainant.
7.4 The State party submits that the communication is inadmissible under
article 22, paragraph 2, of the Convention, on the basis that it fails to
rise to the basic level of substantiation required for purposes of
admissibility under article 22, paragraph 2, of the Convention. The
Committee is of the opinion that the arguments before it raise substantive
issues which should be dealt with on the merits and not on admissibility
alone.
7.5 Accordingly, the Committee finds the communication admissible and
proceeds to consideration of the merits.
Consideration of the Merits
8.1 The issue before the Committee is whether the complainant's removal to
Azerbaijan 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.
8.2 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
individual concerned would be personally at risk in the country to which he
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.
8.3 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 previous decisions, the Committee has determined
that the risk of torture must be foreseeable, real and personal.
8.4 In assessing the risk of torture in the present case, the Committee
notes that the complainant claims that he was arrested and detained for
periods of two days on two occasions by Azerbaijani authorities, and that
during this period he was tortured. It also notes his assertion that there
is a foreseeable risk that he would be tortured if returned to Azerbaijan,
on the basis of his political activities, his previous detentions and
torture and the outstanding arrest warrant.
8.5 The Committee observes that the State party questions the complainant's
credibility and the authenticity of the documentation submitted by him,
based on the investigations of the Swedish Aliens Appeals Board and the
expert report obtained through its embassy in Turkey. In particular, the
State party has questioned the complainant's position within the Musavat
party, and at the Musavat party newspaper, and the authenticity of the
Musavat party membership card, the alleged decision of detention dated 2
July 2003, the arrest warrant dated 15 January 2004 and the certificates of
various Azerbaijani organisations.
8.6 The Committee recalls that according to its General Comment No. 1, the
burden to present an arguable case is on the complainant of a complaint
(A/53/44, annex IX, para. 5). It recalls its jurisprudence that it is for
the complainant to collect and present evidence in support of his account of
events [FN5]. While the complainant has provided various copy documents to
the State party and the Committee, the Committee considers that the
complainant has failed to disprove the State party's findings and to
validate the authenticity of the various documents in question. He has also
failed to give any satisfactory response to submissions made by the State
party concerning certain issues of fact, such as, for example, with regard
to the death of his father, which he had stated was allegedly connected to
his political activities. Further, he has not been able to provide any
medical evidence to support his claims of mistreatment at the hands of the
Azerbaijani authorities.
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[FN5] S.L. v Sweden, Communication No. 150/1999, Views adopted on 11 May
2001, para.6.4 ; and M.Z. v Sweden, Communication No. 256, Views adopted on
17 May 2006, para. 9.5
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8.7 The Committee reiterates that for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured. On the basis of the above, the Committee
has formed the opinion that the complainant has not submitted sufficient
satisfactory details or corroborating evidence to substantiate the fact of
his detentions by, and treatment at the hands of, the Azerbaijani
authorities or the alleged criminal investigation against him and the
related arrest warrant. The Committee considers therefore that the
complainant has not substantiated that he would personally face such a
foreseeable, real and personal risk of being subjected to torture upon his
return to Azerbaijan.
9. The Committee Against Torture, acting under article 22, paragraph 7, of
the Convention, considers that the complainant has not substantiated his
claim that he would be subjected to torture upon return to Azerbaijan and
therefore concludes that his removal to that country 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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