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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 16 May 2008,
Having concluded its consideration of complaint No. 309/2006, submitted to
the Committee against Torture by R. K. et al. 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 communication, 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 R. K., his wife T. O. and their three children, T.
K., born on 2 November 1989, T. S., born on 8 February 1992, and S. K., born
on 14 February 2005, currently awaiting deportation from Sweden to
Azerbaijan. They claim that their deportation would constitute a violation
by Sweden of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The complainants are
represented by counsel, Confrere Juristbyrå.
1.2 On 13 December 2006, the Rapporteur for new complaints and interim
measures requested the State party not to deport the complainants to
Azerbaijan while their case is under consideration by the Committee, in
accordance with rule 108, paragraph 1, of the Committee's rules of
procedures. On 13 September 2007, the State party acceded to this request.
The Facts as Submitted by the Complainants
2.1 In 1998, R. K. became a member of the Musavat party (opposition party)
in Azerbaijan and worked as a journalist for the Yeni Musavat (opposition
newspaper). In 1998, he was elected Secretary of the Musavat party in the
Fizuli district. He was very active within the party, participated in the
organization of meetings and demonstrations and authored the majority of the
political articles published in Yeni Musavat. He set up another oppositional
newspaper called Reyting, which was well known for criticising the regime.
2.2 Due to his political activities, R. K. was harassed and physically
abused on numerous occasions. He was arrested three times (on 10 May 1998,
in the Summer of 2001 and in June 2002), and was ill-treated in connection
with meetings and demonstrations. During one of his arrests in 1998, he was
told by a deputy police commissioner that he had "aggravated" the
authorities. In 2001, he was ordered to pay damages for slander, having
written an article about a member of the People's Front party [FN1]. In the
same year, he was arrested while interviewing refugees who were living in
buildings due to be demolished. He was detained until the same evening. In
March 2002, R. K., I. G., who was then the Musavat party leader, and other
members of the party were on their way by car to a meeting when they were
attacked and physically abused by the police. Having described this incident
in an article in his newspaper on 24 March 2002, R. K. was threatened by the
police. In June 2002, R. K. was arrested after taking pictures of a woman
who was beaten by the police. In May 2003, the offices of the newspaper were
raided by unknown persons and "things were thrown" at R. K. Despite
complaints to the police, no investigation was carried out and it is
believed by the complainants that the authorities sanctioned the raid. In
May 2003, R. K. wrote about President Eldar Aliyev's deteriorating health,
and immediately thereafter, the authorities announced that the Musavat party
and the Yeni Musavat would be shut down.
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[FN1] On 21 November 2003, R. K. was ordered to pay further damages for
slander with respect to allegations of corruption in a school.
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2.3 In October 2003, presidential elections took place in Azerbaijan. On 15
October, the day before the elections, and on the election day itself,
clashes took place between government forces and opposition supporters.
Hundreds of Musavat supporters were beaten with rubber truncheons and fists
in an unprovoked attacked. The headquarters of the Musavat party were also
attacked. The Ambassador of Norway warned the staff that their lives were in
danger and invited them to stay in the Norwegian embassy. R. K. stayed there
that night. Subsequently, he was asked to testify in a trial against members
of the Musavat party who had been charged with the instigation of the street
riots. On 16 September 2004, R. K. made a statement during the trial, in
which he confirmed that he had encouraged the demonstrators to march.
Following this trial, and threats from the authorities, he and his family
fled Azerbaijan.
2.4 On 5 October 2004, the complainants arrived in Sweden and applied for
asylum. On 13 March 2006, the Migration Board rejected their application,
considering that many of the measures taken against R. K. in connection with
demonstrations could not be seen as targeting him personally. According to
Swedish legislation in force before 31 March 2006, applications for asylum
were in the first instance examined by the Migration Board and were then
reviewed by the Aliens Appeals Board, which was the final instance (Aliens
Act of 1989). After 31 March 2006, the Aliens Act 2005 entered into force,
whereby the re- examination of the Migration Board's decisions was
transferred from the Aliens Appeals Board to three Migrations Courts.
Between 15 November 2005 and 31 March 2006, an Interim Law was in force,
under which provisions certain asylum-seekers who were denied asylum
obtained a new opportunity to obtain a residence permit. These cases were
analysed by the Migration Board and were not subject to appeal. On the
complainants' request, their application was reviewed by the Migration Board
under the interim law.
2.5 On 4 September 2006, the Board rejected the complainants' application,
on the grounds that they could not be considered to have resided for long
enough in Sweden. According to the decision itself, no new circumstances
emerged which would constitute reasons to grant residence permits under the
Aliens Act, and the family had not formed such ties with Sweden through
their stay there that they would be entitled to residence permits on those
grounds. The complainants consider that the Migration Board examined their
case in a routine manner, without giving sufficient attention to the oral
interview.
The Complaint
3. The complainants claims that if they are forcibly returned to Azerbaijan,
they risk being tortured, in violation of article 3 of the Convention, on
account of: R. K.'s political activities, as a member of the Musavat Party;
his activities as a journalist for the opposition newspaper Yeni Masavat;
and the witness statement he is alleged to have made before the Azerbaijani
court on 16 September 2004. According to the complainants, it is well-known
that the Azerbaijani authorities use torture during interrogations and
provide a number of reports to demonstrate their view.
State Party's Observations on Admissibility and Merits
4.1 On 13 September 2007, the State party challenged the admissibility and
merits of the complaint. It only responds to the claims raised in relation
to R. K. It confirms that he has exhausted domestic remedies but argues that
the complaint is manifestly ill-founded. On the facts, it submits that the
judgements for slander issued against R. K. by the Azeri courts were not
criminal convictions but civil actions. 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.
It also 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. It points out that
the Swedish authorities therefore apply the same kinds of test as the
Committee when examining complaints under the Convention.
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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.
[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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4.2 The State party claims that R. K.'s return to Azerbaijan would not
entail a violation of article 3 of the Convention. Great weight must be
attached to the decisions of the Swedish migration authorities, as they are
well placed to assess the information submitted in support of an asylum
application and to assess the credibility of an applicant's claims. R. K.
failed to substantiate his allegations of past abuse and provided no
evidence in support of these allegations - either medical reports or
photographs. He merely described the situations in which he was allegedly
abused in broad terms and provides no specific details of the events. He
failed to demonstrate that any of the alleged assaults were aimed at him
personally, and appeared to have taken place in connection with political
meetings and demonstrations where mass arrests took place. Although he
claims to have been arrested and taken to a police station on three
occasions in Azerbaijan, there is no indication that he was subjected to any
kind of abuse while detained, despite the fact that the arrests were alleged
to have been made in connection with his political activities and work as a
journalist. He was never detained for more than a few hours, was never
prosecuted for the acts that led to the arrests. The State party deduces
that the Azeri authorities must have been less interested in him than he
claims if he was only briefly arrested on three occasions.
4.3 The State party further submits that R. K. did not prove that an order
for his arrest was in fact issued, and he does not explain why he was never
arrested. It refers to the witness statement, which he claims to have given
during a court hearing on 16 September 2004 implicating himself in having
urged the demonstrators to march on 16 October 2003, but also notes that he
was not arrested during these proceedings. He alleges that they planned to
"take care of him" in another way. In support of his claim about his witness
statement, he invoked a newspaper article in Yeni Musavat that he claims was
published on 17 September 2004. According to a report, dated 4 July 2007, of
an investigation by a lawyer practicing in Azerbaijan at the request of the
Swedish embassy in Ankara, it would appear that R. K. is not mentioned in
the judgment of the proceedings referred to in this article. He is neither
wanted by the authorities, nor has been convicted of any crime. In any
event, the State party submits, as it would appear that in 2005 a pardon was
granted to all seven opposition leaders who were sentenced to prison in the
aftermath of the 2003 elections and that their previous convictions were
quashed, it appears highly unlikely that the authorities would be interested
in arresting and pressing charges against him for his alleged activities in
connection with those elections.
4.4 In the same report of 4 July 2007, the Swedish embassy in Ankara
confirmed that R. K. is a member of the Musavat Party, but that he never
held a leading position in the party, and that his political activity was
confined to being a journalist for Yeni Musavat. The report also states
that, Musavat is an opposition party in constant trouble with the
authorities, mainly in relation to election rigging, and journalists
critical of the current regime are under constant threat from the
authorities, including attacks, abuse and physical violence. However, no
such journalists (listed by the lawyer) have left the country. The State
party adds that the Musavat party is officially registered and legal and
that party membership is not considered to be a criminal offence. It only
won five of the 125 seats in the parliamentary elections in November 2005,
and thereby lost much of its position as one of the major opposition parties
in Azerbaijan. Thus, the State party questions whether the authorities would
take a strong interest in the political activities of the Musavat party
members.
4.5 With regard to the general situation concerning human rights in
Azerbaijan today, the State party points to its membership of the Council of
Europe and the fact that Azerbaijan has ratified several major human rights
instruments, including the Convention against Torture. It submits that
Azerbaijan has made progress in the field of human rights and in this regard
refers to the punishment of around 100 police officers for human right
abuses in 2006, the establishment of the institution of a national ombudsman
and a new action plan for the protection of human rights was announced by
President Aliyev in December 2006. The State party submits that it does not
wish to underestimate the legitimate concerns that may be expressed with
respect to its human rights record and notes 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, and concern for the freedom of the media and the freedom of
expression, in particular with respect to journalists. However, it 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 that
country.
4.6 The State party acknowledges that the situation for journalists in
Azerbaijan is a cause for concern. However, the situation is not such that
the mere fact that an asylum seeker is a professional journalist and
criticized the current regime in past articles published in Azerbaijan,
would suffice to establish a possible violation of article 3. In this
regard, it submits that R. K. has not been politically active or had
articles published in Azerbaijan since he left the country at the end of
September 2004.
Complainants' Comments on the State Party's Observations
5.1 On 10 December 2007, the complainants submit that it was the witness
statement R. K. gave on 16 September 2004, which finally "made the
authorities want to get rid of him" and the reason the entire family fled
the country. R. K. was threatened by employees from the Ministry of Internal
Affairs and the Ministry of Security. They had no opportunity to enforce the
threats, as there were a lot of people outside the court room when he left.
He understood that it would just be a matter of time before the threats
would be enforced. The reason he was not arrested for his activities on 15
and 16 October 2003, was because the authorities feared to attract
international attention. He was in the headquarters of the newspaper with
several international observers during the incident, while those outside
were being physically abused or arrested. The authorities had already
received a lot of bad press following the incident in question and were only
waiting for an appropriate moment to make him "disappear".
5.2 As to the report from the Swedish embassy in Ankara, the complainants
highlight the confirmation that R. K. was a member of the Musavat party and
worked as a journalist for the affiliated newspaper, the Yeni Musavat.
Furthermore, it refers to the fact that, as mentioned in the report, the
Musavat party is,"in constant trouble with the authorities", and that
journalists critical of the regime are under constant threat from the
authorities and suffer attacks, abuse and physical violence. The
complainants confirm that R. K. was never convicted of a criminal offence
nor "officially" wanted by the authorities. This fact alone however does not
take away from the fact that he is considered a threat to the regime. The
claimant denies that there are no known cases of other journalists who have
left the country, as claimed in the report, and refers to one such
journalist who was granted asylum in Sweden. As to the fact that R. K. is
not mentioned in the judgement, it is explained that the authorities would
not report such a witness statement in an official judgement that would
tarnish their reputation. They acknowledge that he was not in a leadership
position within the party, but claim that he had been a prominent person
within the Yeni Musavat.
5.3 As to the arguments on the broad nature of the descriptions of the abuse
allegedly suffered by R. K., the complainants submit that it is difficult
for R. K. to recall every detail, and refer to the Committee's jurisprudence
that accounts of past torture will contain inconsistencies or be inaccurate
but that complete accuracy is seldom expected of victims of torture.[FN5]
They attach a forensic and a psychiatric medical report, dated 22 and 23 of
October 2007, respectively, which according to them give a thorough account
of the past persecution, harassment and physical abuse to which he was
subjected. The forensic report states that the results of the examination
can possibly verify his claims of exposure to blunt instruments; the
psychiatric report confirms that R. K. suffers from Post Traumatic Stress
Disorder (PTSD). According to the complainants, they demonstrate that R. K.
has a state of ill-health that is consistent with the information he has
given about his persecution. The complainants refer to the Committee's
jurisprudence by arguing that the fact that R. K. suffers from PTSD should
be taken into account when assessing his case. [FN6]
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[FN5] Communication No. 39/1996, Tala v. Sweden, Views adopted on 15
November 1996.
[FN6] Communication No. 65/1997, I.A.O. V Sweden, Views adopted on 6 May
1998.
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5.4 As to the State party's view that there is no general need for
protection of asylum seekers from Azerbaijan, the complainants submit that
they have never made such a claim, but rely on their argument that R. K. is
currently personally at risk. They question whether the Swedish migration
authorities apply the same kind of test as the Committee when considering an
application for asylum under the 1989 Aliens Act, as the test applied is one
of a "well-founded fear" rather than "substantial grounds" for believing
that an applicant would be subjected to torture, as in the Convention.
According to the complainants, the current case was examined in a "routine
manner", and the Migration Board did not consider the case in a balanced,
objective and impartial way.
5.5 As to the general human rights situation in Azerbaijan, the complainants
submit that the situation has deteriorated, in particular for journalists.
Concern is expressed for the freedom of the media and the freedom of
expression and journalists have increasingly been subjected to threats,
harassment and physical abuse. False charges of slander are used as
intimidation. There has been a dramatic increase in defamation charges
brought against journalists by state officials, and eight journalists are
currently detained in Azerbaijan today. Those affiliated with the Musavat
party are harassed, arrested, detained and beaten, and there have been
attempts to close down the Yeni Musavat newspaper by filing multiple
lawsuits against it. Sources have also reported unexplained deaths of two
opposition supporters. Politically motivated arrests are used by the
government to suppress the opposition. It is common that such detainees
remain in re-trial detention for more than a year after arrest, and non-
governmental organisations continue to receive reports of torture,
particularly in police lockups. [FN7]
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[FN7] To support his claims he provides the following reports : Reports from
the UN Special Rapporteur on Torture in press release on 6 March 2007 "UN
rights expert voices concern about press freedom in Azerbaijan" ;
Information from the Immigration and Refugee Board of Canada, dated 9 March
2007 and 20 February 2007; a Report from Amnesty International, dated 24
January 2007; Human Rights Watch, Crushing Dissent of January 2004, Events
of 2006, and World Report 2007; Reporters without boundaries 1 February
2007, 20 July 2007, and 14 November 2007.
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State Party's Supplementary Observations
6.1 On 25 February 2008, the State party submits that its limited reply
herewith should not be taken to mean that it accepts the parts of the
complainant's observations that it does not address here, and maintains its
position stated in its observations of 13 September 2007. As to the
medico-legal and psychiatric certificates that have been invoked in support
of the complainant, the State party submits that, as this is new
documentation it has not been assessed by the Swedish migration authorities.
In addition, the complainant has not offered any explanation as to why he
did not undergo the examinations in question at an earlier date. It finds
that the conclusion in the certificates offers weak support for his claim of
past abuse, particularly in light of its conclusion that "repeated external
blunt force trauma has been reported which may be partly verified by
examination. The result of the examination may possibly support his report
of assault and torture." The State party maintains that the complainant has
failed to substantiate his claim about past abuse. Complainant's
supplementary observations
6.2 On 18 April 2008, the complainants provided a supplementary submission,
in which they state that it is undisputed that the medical certificates have
not been invoked before or assessed by the Swedish migration authorities.
They submit that the competence to decide whether or not to conduct a full
torture investigation rests with the Migration Board. Even though the
Migration Board did not contest the complainant's claim that he had been
subjected to serious physical abuse, the issue of whether or no the author
had been tortured and the consequences thereof for him were not considered
at all. Hence, in the complainant's view, the Swedish authorities held the
opinion that the author's experience of past abuse lacked relevance when
assessing the complainants need for asylum and protection. The complainants
were surprised when they learnt the State party's "new" position on 13
September 2007, that the complainant had failed to substantiate his claim
about having been subjected to abuse in the past. It was in order to
substantiate his claim that the complainant considered it necessary to
undergo a complete torture investigation. Thus, it was the State party's
contention that caused the complainant to submit new documents. If the State
party had not "revised the assessment made by the domestic authorities",
there would have been no reason for the author to invoke new documents
before the Committee. The complainant contests the State party's conclusion
that the reports in question offer weak support for his claims and sets out
the findings of the reports. He also attaches a statement, dated 17 April
2008, from Reporters Without Borders, which refers to him, stating that he
was described as far back as 19 December 2001, as a politically active
journalist for a party of the opposition in Azerbaijan and supports his
asylum claim.
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 In accordance with article 22, paragraph 5 (b), of the Convention, the
Committee does not consider any communication unless it has ascertained that
the complainant has exhausted all available domestic remedies. The Committee
notes the State party's acknowledgment that domestic remedies have been
exhausted and thus finds that the complainants have complied with article
22, paragraph 5 (b).
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
considerations alone.
7.5 Accordingly, the Committee finds the communication admissible and
proceeds to its consideration on 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 The Committee notes the claim that R. K. would be tortured if deported
to Azerbaijan on account of his past political activities, his activities as
a journalist and a statement he gave before an Azeri court in 2004. It also
notes that he claims to have been tortured in the past and in support of his
claims has provided recent medical reports which, as highlighted by the
State party, were not presented before the Migration Board The Committee
observes that, although it is undisputed that R. K. was a member of the
Musavat party, he concedes that he was not in a leading position in the
party and has failed to adduce evidence about the conduct of any political
activity of such significance as would still attract the interest of the
Azerbaijani authorities. He has also failed to adduce evidence of his
involvement in the demonstrations that accompanied the elections of 2003. He
admits that he was not convicted of any charge following these
demonstrations, and even if it were accepted, despite lack of evidence in
this regard, that he had made a statement during the subsequent trial with
respect to his involvement in the demonstrations, he was not arrested as a
result thereof and is not wanted by the authorities. Indeed he has never
been charged with, nor prosecuted for, any criminal offence in Azerbaijan.
8.5 As to his claims of past torture, the Committee notes, as highlighted by
the State party, that R. K. has only provided general information and no
specific detailed information on incidents of torture or ill-treatment. It
observes that, although he claims to have been arrested on three occasions,
he was neither tortured nor ill-treated during these arrests. Even the
medical reports, provided late in 2007, are lacking in detail, despite
claims to the contrary, and refer to "repeated incidents of violence" in
connection with demonstrations and the fact that R. K. was subjected to
"threats, assault, and abuse ...". While recognising that the results of the
forensic report which, of 22 October 2007, "may possibly support his report
of assault and torture" and that, the psychiatric report of 23 October 2007,
confirms that he suffers from Post Traumatic Stress Disorder (PTSD), the
question is whether he currently runs a risk of torture if returned to
Azerbaijan. It does not automatically follow that, several years after the
alleged events occurred, he would still be at risk of being subjected to
torture if returned to Azerbaijan in the near future. [FN8]
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[FN8] Communication No. 245/2004, S.S.S. v Canada, Views of 16 November 2005
and Communication No. 126/1999, Haad v Sitzerland, Views of 10 May 2000.
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8.6 In the Committee's view, the complainants have failed to adduce any
other tangible evidence to demonstrate that R.K. would face a foreseeable,
real and personal risk of being subjected to torture if returned to
Azerbaijan. For these reasons, and in light of the fact that the other
complainants' case is closely linked to that of R. K., the Committee
concludes that the remaining complainants have failed to substantiate their
claim that they would also face a foreseeable, real and personal risk of
being subjected to torture upon their return to Azerbaijan and therefore
concludes that their removal to that country would not constitute a breach
of article 3 of the Convention.
9. 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 complainants' removal to
Azerbaijan by the State party 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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