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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 10 November 2008,
Having concluded its consideration of complaint No. 285/2006, submitted to
the Committee against Torture by A.A. 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
complainant and the State party,
Adopts the following:
Decision under article 22, paragraph 7, of the Convention against Torture
1. The complainant, A.A., an Algerian national of Palestinian origin born in
1971, is currently awaiting deportation from Switzerland. His complaint is
also submitted on behalf of his wife and their five children, born between
2001 and 2007. He claims that their forced return to Algeria would
constitute a breach by Switzerland of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
The Facts as Presented by the Complainants
2.1 In 1997, the complainant was working as a bodyguard for K.A., a very
influential retired Algerian army general. One day, on arriving at the
General's home, he found the General and several other persons gathered
around a corpse. The General threatened him if he did not remain silent. In
2000, he decided to marry, and his family encouraged him to quit his job.
The General wanted to prevent the marriage from taking place, out of fear
that the complainant might decide to break his silence. He demanded that the
complainant either remain in his job and not get married, or leave the
country.
2.2 The complainant left Algeria with his wife in November 2000. They stayed
illegally in the Libyan Arab Jamahiriya until June 2001 and then returned to
Algeria. Notwithstanding the precautions they took, the General learned of
their return and again threatened the complainant. In March 2002, unknown
persons opened fire on his house and, the same evening, he was arrested. He
was held incommunicado for one week, during which he was interrogated and
ill-treated. He believes that the General was behind his arrest and
subsequent detention.
2.3 On 2 September 2002, the complainant left Algeria with his family and
went to Switzerland. One month earlier, he had applied for a passport, which
he received on 18 August 2002. The following day, he also obtained a visa
for Switzerland. Following his departure, he was summoned by the Algerian
police on three occasions: on 26 September 2002, on 6 October 2002 and on 28
May 2003.
2.4 According to the complainant, the Swiss Embassy in Algiers verified the
authenticity of the documents he submitted and sent a report on the matter
to the Federal Office for Migration. This report confirmed the identity of
the complainant and the fact that he had worked for General K.A., thus
corroborating his account.
2.5 On 19 September 2002, the complainant filed an application for asylum.
On 31 January 2005, his application was rejected. His appeal of 3 March 2005
was also rejected, on 20 October 2005.
2.6 The complainant has submitted to the Committee a medical report dated 14
February 2006 stating that he is suffering from depression due to
post-traumatic stress. Since the rejection of his asylum application, his
mental health has deteriorated and he is displaying suicidal tendencies.
The Complaint
3.1 The complainant asserts that he was summoned by the police on three
occasions and that, according to the third summons, dated 28 May 2003, he
was required to appear before a judge on 3 June 2003. This implies that he
is to be put on trial, probably at the instigation of General K.A. The
summons gives no indication, however, of the charges.
3.2 The complainant fears that, if he is sent back to Algeria, he will face
a grave risk of torture and ill-treatment in the meaning of articles 1 and
16 of the Convention. Given the influence of General K.A. in public life in
Algeria, public officials were undoubtedly responsible for, or at least
consented to or acquiesced in, the events described. The risks faced by the
complainant must also be seen in the light of the situation of human rights
in Algeria. In this regard, the complainant concludes that his removal to
Algeria would be contrary to article 3 of the Convention. He also fears for
his life, and it is for this reason that his mental health has deteriorated.
State Party's Observations
4.1 In its observations of 7 July 2006, the State party maintains that the
complainant has not produced evidence that he faces a foreseeable, real and
personal risk of being tortured in the event of his removal to Algeria. He
has not provided the Committee with any new evidence calling into question
the decisions of the Swiss Asylum Appeals Commission (CRA) dated 20 October
and 23 December 2005 and 16 January 2006.
4.2 The complainant claims that, in February-March 2002, he was arrested by
hooded civilians, who held him for one week in a location unknown to him,
where he was interrogated and ill-treated. However, his account of the
circumstances of his arrest and his alleged detention lacks credibility. For
example, he is unable to describe the interrogations to which he was
subjected, and his explanations of the grounds for his arrest remain vague.
Moreover, except for his alleged arrest, he has never had any problems with
the Algerian authorities.
4.3 The State party does not dispute the existence of the sequelae from
which the complainant is suffering, but considers it highly unlikely that
they were caused by acts of torture. Indeed, the medical certificate
indicates various possible reasons for the complainant's condition, the
doctor who examined him saw him only once and, apart from the medical
certificate, there is no evidence of the alleged ill-treatment. In addition,
during the proceedings before the domestic authorities, the complainant made
no reference to the medical certificate.
4.4 The complainant affirmed that he had not been politically active in
Algeria. By his own account, his membership of the Fatah movement in the
years 1987-1997 in the Syrian Arab Republic and Lebanon - prior to his stay
in Algeria, therefore - constituted his only political activity. The State
party concludes therefrom that the complainant does not face any risk of
being subjected to treatment inconsistent with article 3 on grounds of
political activities.
4.5 The complaint before the Committee consists mainly of statements and
evidence already put before CRA. This authority noted that neither the
police summonses, nor the letter of corroboration from a former work
colleague of the complainant's, referred to prosecutorial measures in the
meaning of the law on asylum and that these documents were not sufficiently
significant to justify a review. For example, the police summonses are
virtually silent on the legal grounds and reasons for which the complainant
is being sought. Likewise, the undated written testimony of his former work
colleague contains no important new information. In addition, it is
surprising, to say the least, that the complainant should have submitted
this evidence only after the completion of the normal domestic procedures,
that is, after the CRA decision of 20 October 2005.
4.6 After considering the case, CRA highlighted numerous inconsistencies
that have not been explained by the complainant, either before the national
authorities or before the Committee. Several events, as described by the
complainant, are illogical or contrary to general experience. It should have
been very much in K.A.'s interests for the complainant to remain in Algeria,
under his control. Indeed, it is unlikely that the complainant would have
waited several months to leave Algeria after quitting his job if he had felt
seriously threatened by K.A. Similarly, if K.A. had been as influential as
the complainant describes, it is doubtful that the latter would have
encountered no particular problems for more than six months following his
return to Algeria in June 2001. Lastly, one month prior to his departure
from Algeria, the complainant was issued an Algerian passport, which he
presented at the border control on exiting the country. He fails to explain,
however, why the security authorities would have allowed him across the
border when he was supposedly the object of persecution exposing him to a
risk of torture, as demonstrated, according to the complainant, by the
police summonses. Nor does he elucidate how his alleged detention remains
relevant today, putting him at risk of torture.
4.7 The Swiss authorities characterized the complainant's allegations
regarding the existence of a criminal inquiry pending against him as lacking
credibility. Even if his claim that he is being sought by the police and
risks arrest in the event of his return were credible, article 3 of the
Convention offers no protection to a complainant who alleges merely that he
fears being arrested on returning to his country.
4.8 In the light of the implausibilities and inconsistencies identified,
which are not indicative of a person who actually experienced the problems
and treatment alleged, the Swiss authorities ordered the removal of the
complainant and his family members to their country of origin, having first
meticulously examined the lawfulness, enforceability and practicability of
such a measure. On the basis of this examination, there is nothing to
indicate the existence of substantial grounds for fearing that the
complainant would face a specific and personal risk of being tortured on his
return to Algeria.
Complainants' Comments
5.1 On 8 September 2006, the complainant informed the Committee that,
following his request for the reconsideration of his asylum application, the
Swiss authorities had suspended the removal procedure. In support of his new
application, the complainant's lawyer had submitted a medical report
indicating that the complainant was displaying suicidal tendencies, owing to
the profound depression and the post-traumatic disorder from which he was
suffering. The complainant attributed these problems to his experiences
during his detention in Algiers.
5.2 Regarding the police summonses, the complainant does not know why the
grounds were not stated. Nor is he aware of the grounds themselves. As to
the observation made concerning his failure to leave Algeria sooner, he
maintains that he did not have a passport and that it took time to obtain
one. He had to complete all the procedures required for leaving the country
in secrecy, so that K.A. would not learn of his intentions and prevent his
departure. He stresses the authenticity of the letter from his former
colleague indicating that the complainant is still being sought by the
police. He also emphasizes that the Swiss authorities should not draw
conclusions about his state of health without first having him examined by a
doctor.
5.3 Subsequently, the complainant transmitted to the Committee a copy of a
medical certificate dated 19 July 2007 stating that his depression and
suicidal tendencies had worsened significantly and that he was emotionally
unstable. It further stated that he was taking medication and that
confinement to a mental hospital should be considered. In addition, he was
engaging in violent behaviour, raising fears for his children's physical
safety. His state of health was attributable to the trauma he had suffered
and the precariousness of his situation in Switzerland.
Issues and Proceedings Before the Committee
Consideration of Admissibility
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), of the Convention, that the same matter
has not been and is not being examined under another procedure of
international investigation or settlement.
6.2 The Committee notes that there is no obstacle to admissibility, which is
not challenged by the State party. Accordingly, the Committee considers the
complaint admissible and proceeds to its consideration of the merits.
Consideration of the Merits
7.1 The issue before the Committee is whether the removal of the
complainants to Algeria would violate the State party's obligation under
article 3 of the Convention not to expel or return (refouler) 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, in accordance with article 3, paragraph 2, of the
Convention, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim of such assessment,
however, is to determine whether the individuals concerned would personally
risk torture in the country to which they would return. It follows that the
existence in a country of a consistent pattern of gross, flagrant or mass
violations of human rights does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture on his or her return to that country. Additional
grounds must be adduced to show that the individual concerned would be
personally at risk. Similarly, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person may not be
subjected to torture in his or her specific situation.
7.3 The Committee recalls its general comment on article 3, which states
that the Committee must assess whether there are substantial grounds for
believing that the complainant would be in danger of being subjected to
torture if removed to the country concerned. [FN1] The risk need not be
highly probable, but it must be personal and present.
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[FN1] Official Records of the General Assembly, Fifty-third Session,
Supplement No. 44 (A/53/44), annex IX.
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7.4 As to the burden of proof, the Committee again recalls its general
comment on article 3 and its case law, which state that the burden is
generally on the complainant to present an arguable case and that the risk
of torture must be assessed on grounds that go beyond mere theory or
suspicion.
7.5 In the present case, the complainant asserts that, in 2000-2001, he was
threatened by his former employer, a retired Algerian army general, and
that, in 2002, he was arrested, held incommunicado for one week and
ill-treated. He claims that, subsequently, he was summoned by the police on
three occasions. The State party points out that his account of the
circumstances of his arrest and his alleged detention lacks credibility,
that he has been unable to describe the interrogations to which he was
subjected and that his explanations of the grounds for his arrest have
remained vague. The State party also refers to the lack of evidence of a
link between his current state of health and the ill-treatment he claims to
have suffered. As to the police summonses, no information is available
concerning the reasons for which the complainant is supposedly being sought.
The Committee notes that the account submitted by the complainant does not
shed any light either on the conditions of his previous detention or on the
reasons for which he is being sought by the police now, several years after
his departure from Algeria. The Committee takes note of the psychiatric
reports submitted by the complainant stating that he is suffering from
profound depression and a severe post-traumatic disorder. The main question,
however, is whether he currently runs a risk of torture. 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 removed to
Algeria in the near future. [FN2]
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[FN2] See communication No. 309/2006, R.K. et al. v. Sweden, Views adopted
on 16 May 2008, para. 8.5.
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7.6 Taking into account all information made available to it, the Committee
considers that the complainant has failed to provide sufficient evidence to
demonstrate that he would face a foreseeable, real and personal risk of
being subjected to torture if deported to his country of origin.
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 deportation of the complainants
to Algeria would not constitute a breach of article 3 of the Convention.
[Adopted in English, French, Russian and Spanish, the French 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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