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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 14 November 2008,
Having concluded its consideration of complaint No. 306/2006 submitted to
the Committee against Torture on behalf of E. J. 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
complainants, 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 E. J. et al., all Azerbaijani citizens and
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.
1.2 On 26 October 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
procedure. On 27 September 2007, the State party acceded to this request.
The Facts as Presented by the Complainants:
2.1 On 14 January 2001, E. J, who was a student in Baku, joined the
Azerbaijan Democratic Party (ADP), an opposition party aiming at
establishing democracy in Azerbaijan and defending human rights. E. J.
occupied several posts in the party, including party secretary in the
Nerimov District between 18 March and 21 October 2001. Subsequently, he
became an "instructor" and was responsible for "strategic questions and
education". According to the complainants, as a consequence of his active
participation in the ADP, E. J. was expelled from his university and from
the professional basketball team in which he was playing.
2.2 On 21 June 2003, E. J. was arrested while demonstrating in Baku. He was
brought to the police station where he was detained with other ADP members
for ten days. He claims to have been exposed to physical abuse by two
policemen. In particular, he claims that he was kicked and hit repeatedly
with a truncheon over his body every day for periods of 30 minutes, until he
was released on 1 July 2003.
2.3 On 16 October 2003, E. J. was arrested a second time while demonstrating
against the alleged irregularities of the presidential elections. He was
found guilty for having hit a policeman, which he denies. He was then
sentenced to fifteen days and detained for this period. He claims that he
was subjected to repeated severe physical abuse, as a result of which he
once lost consciousness. He does not describe the type of treatment received
but says that it was carried out in the same way as during his first arrest
but was more severe. He contends that, while in detention, he was put under
pressure by the authorities to end his political activities within the ADP.
2.4 The complainants argue that E. J.'s arrests, the humiliation and the
severe physical abuse he was exposed to were not only the results of his
involvement in the demonstrations, but were related to his active
participation in the ADP. He is convinced that the authorities wanted to set
an example to dissuade others from engaging in political activities.
2.5 In the beginning of 2004, E. J. and his wife claim to have been
constantly threatened by the authorities. Following such threats, A. J. who
was pregnant at the time became very stressed and had to undergo a Caesarean
section during which their son was born with disabilities. On 20 May 2004,
E. J. took part in yet another demonstration, during which the police
arrived and beat demonstrators with truncheons. Some demonstrators were
arrested but E. J. managed to escape [FN1]. Subsequently, he and his family
fled to the Russian Federation and then to Sweden where they applied for
asylum on 12 August 2004.
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[FN1] During his first interview, E.J produced the following documents: an
identity card, ADP membership, three political party documents and two what
he refers to as "arrest warrants". He provides no explanation of these
documents.
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2.6 On 31 May 2005, the complainant's application for asylum was rejected by
the Migration Board. The Board noted that Azerbaijan was a member of the
Council of Europe (CoE) and has undertaken legal reforms to ensure the
respect for human rights. It did not contest the facts presented by the
complainants but found it unlikely that E. J. would face a risk of
persecution if he returned to Azerbaijan, where several political opponents
had recently been released. The complainants appeal to the Aliens Appeals
Board was rejected on 1 November 2005. The complainants' application for
permanent residence permits on humanitarian grounds was also denied on 25
July 2006 and a request for review of this decision was rejected on 17
August 2006.
2.7 As to the general human rights situation in Azerbaijan, the complainants
provide copies of reports from Human Rights Watch, dated January 2006,
Amnesty International, dated 2005 and the International Helsinki Federation
for Human Rights, dated 2006. All reports denounce a consistent pattern of
gross, flagrant and mass violations of human rights particularly towards
political opponents.
The Complaint:
3. The complainants claim that Sweden would violate article 3 of the
Convention in deporting them to Azerbaijan, as there is a real risk that E.
J. will be subjected to torture, on account of his membership and activities
on behalf of the ADP.
State Party's Submissions on Admissibility and Merits:
4.1 On 27 September 2007, the State party challenged the admissibility and
merits of the complaint. It confirms that the complainants have exhausted
domestic remedies but argues that the complaint is inadmissible, as it is
manifestly ill-founded, and is an abuse of the right of submission on
account of the submission of documents which the State party claims are not
authentic. If the Committee considers the complaint admissible, the State
party denies that it would violate the Convention by deporting the
complainants to Azerbaijan.
4.2 The State party 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 complainants 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] ommunication 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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4.3 The State party submits that 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. The State party therefore
relies on the decisions of the Migration Board and the Aliens Appeals Board.
In January 2007, it requested the assistance of the Swedish Embassy in
Ankara regarding some of the issues raised in this case. The Embassy engaged
the services of a human rights lawyer in Baku, who has many contacts among
human rights organisations and opposition political parties in Azerbaijan.
The results of this investigation were set out in a report dated 19 March
2007: according to Akif Shahbazov, the former chairman of the ADP, E. J. was
never a member of the ADP; the claim that E. J. was expelled from university
due to his membership of a political party is incorrect, as according to the
director of the university he was expelled for having failed to pay his
fees; and E. J. is not wanted by the Azerbaijani authorities; and finally
there are no past or current proceedings registered against him.
4.4 As to the documents provided by the complainants, the report of 19 March
2007 states that: Akif Shahbazov denies having signed the document allegedly
issued by the ADP, denies that E. J. is a member of the ADP, and states that
the ADP has no record of this document; what are referred to as "arrest
letters" dated 21 June 2003 and 16 October 2003, are translated as "judgements"
by the lawyer in question, are not recorded in the court's register and the
judges who are alleged to have signed them deny having done so; and finally
the document issued by the police of Baku on 22 May 2004 is considered to be
a forgery, as it contains several formal and stylistic errors, there is no
record of such a summons at the police authority register, the name of the
person on the summons never worked as an investigator in the department in
question, and, in any event, such a summons could only have been issued by
investigators of the Military Prosecutor's Office and not by the police of
Baku.
4.5 On the basis of this report, the State party concludes that the
documents invoked in support of E.J's membership, activities and positions
in the ADP, his alleged arrests in 2003, and his claim to be wanted by the
police for his involvement in the demonstration allegedly held in May 2004,
are not authentic. This report also supports the conclusion that: there is
no judgement against E. J.; he is not wanted by the authorities in
Azerbaijan; he has never been active in the ADP; and his account of his
alleged political activities, the two episodes of arrest/imprisonment and
the claim that he is wanted by the police, are all fictitious. There is
nothing to support the submission that E. J. would risk arrest and torture
upon return to Azerbaijan on account of his past political activities or for
any other reason. Even if the State party were to assume that E.J's account
of his past political activities are accurate, he has not shown substantial
grounds for believing that he and his family would run a real and personal
risk of being subjected to treatment contrary to article 3 if deported to
Azerbaijan. The ADP is an officially registered and legal political
organization, membership of which is not considered a criminal offence. He
has not held a leading position in the party and his alleged activities are
not of such significance that he would attract particular interest on the
part of the Azerbaijani authorities upon return. In addition, his activities
are alleged to have taken place between January 2001 and May 2004 - more
than four years ago. Any claims of a risk of torture should also be viewed
in light of the presidential pardons in 2005. On the issue of past abuse the
State party draws the Committee's attention to the fact that the
complainants have failed to adduce any evidence, medical or otherwise, in
support of these claims.
4.6 With regard to the general human rights situation in Azerbaijan, the
State party points to its membership of the Council of Europe (CoE), and its
ratification of several major human rights instruments including the
Convention against Torture. Azerbaijan has made progress in the field of
human rights and around 100 police officers were punished for human rights
abuses in 2006. The office of a national ombudsman has been established and
a new action plan for the protection of human rights was announced by
President Aliyev in December 2006. As the Swedish Migration Board noted in
its decision of 31 May 2005, a number of persons defined by the CoE as
political prisoners were released by Azerbaijan. This occurred following
several presidential pardons in 2004 and 2005, including, in the spring of
2005, of the ADP leader Mr. S. Jalaloglu.
4.7 The State party does not underestimate any legitimate concerns that may
be expressed with respect to Azerbaijan's human rights record and notes
reports of human rights abuses, including arbitrary detentions and incidents
of beatings 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. Members of the opposition have been
arrested and sentenced to fines or detention in court proceedings that
reportedly failed to meet the standards for due process. According to
estimates by NGOs, the Azerbaijani government held approximately 50
political prisoners in 2006. Leaders of the opposition who have been
released from prison have been prohibited from continuing their political
activities and several members of the opposition have lost their jobs and
have been prevented from obtaining employment. 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.
Complainants' Comments on the State Party's Observations:
5.1 On 16 March 2008, the complainants commented on the State party's
response. They reiterate their previous arguments, and reaffirm that E. J.'s
account of the events in Azerbaijan was consistent throughout the asylum
process and never questioned by the authorities. His credibility was neither
contested by the Migration Board or the Aliens Appeal Board, both of which
acknowledged the facts as presented by him but concluded that he was
arrested due to his participation in the demonstrations and not because of
his position in the ADP. They admit that due to errors of translation the
documents submitted by them to support their case were incorrectly defined
as "arrest letters"/arrest warrants" and are in fact "judgements" as
described by the State party.
5.2 The complainants submit that it is hard to contest the credentials of
the lawyer engaged by the Swedish Embassy in Ankara, since no specific
information is given about him. They question whether this lawyer is
independent and, without any relation to the current regime, and highlight
the widespread corruption which, they claim, must be taken into account when
assessing the veracity of this lawyer's findings [FN5]. They question how
this lawyer obtained this information without connections to the current
regime. As to the information from A. S., that E. J. was never a member of
the ADP, the complainants argue that the State party has provided no written
evidence to this effect, but that this information was only provided orally.
They regret that they have been unable to contact Mr. Shabazov themselves to
deny that he made such a statement but claim that since his son was
imprisoned in Azerbaijan, it has been impossible to reach him. As to the
information given by the director of E. J.'s ex-university, the complainants
explain that it stands to reason that a director of a state-controlled organ
would never admit that a politically active person was expelled, as such a
confession would be an admission that persecution on the basis of political
opinion exists. They also deny that E. J. ever had to pay university fees,
due to his athletic achievements. The complainants reiterate that the
judgements are genuine and cannot understand why the judges in question deny
having signed them. They argue that they may have been threatened inter alia
by the government to make such false statements. In short, the State party
is only basing its decision on the findings of one person - the lawyer who
drafted the report.
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[FN5] The complainants refer to studies carried out by the OECD (Organisation
for Economic Cooperation and Development) and GRECO (Group of States against
Corruption of the Council of Europe) to demonstrate their argument on the
level of corruption in Azerbaijan.
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5.3 The complainants submit that the fact that the ADP is an officially
registered and legal organization in Azerbaijan does not de facto constitute
a guarantee that E. J. will not be arrested and tortured upon return. ADP
members have been arrested and tortured before and a number of well known
sources report that the government still persecutes political opponents,
whether they are registered or not. E. J. held a leading position in the
party, compared to ordinary members, in that he was party secretary for the
Nerimov District, and subsequently appointed instructor during which time he
also became responsible for "strategic questions and education". However,
the complainants also argue that being at a lower level within a party makes
it easier for the authorities to persecute the individuals concerned as,
unlike internationally well-known leaders, such individuals do not have the
protection of the international community. In their view, the authorities
will be even more suspicious if E. J. returns after four years and thus more
likely to be arrested and tortured. As to the State party's argument that
the complainants have provided no evidence of past torture, the complainants
contend that it is for the Committee to consider whether they will be
subjected to torture upon return now and should thus be forward looking.
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 never made this claim, but rely on their argument that E. J. 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 decisions of the authorities should be
regarded as "standard decisions" with regard to asylum seekers from
Azerbaijan claiming persecution on grounds of political belief. On the
general human rights situation in Azerbaijan, the complainants submit that
the situation has deteriorated and refers to two reports from the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment of the Human Rights Council, in the basis of which the
complainants' consider that there is a consistent pattern of gross, flagrant
and/or mass violations of human rights within the meaning of article 3 of
the Convention, in Azerbaijan [FN6]. They also refer to the Ministry of
Foreign Affair's report of 2006, which states that as a whole the human
rights situation did not improve in 2006. It underlines the existence of
torture and ill-treatment, restrictions on the freedom of speech, the
oppression of civil society, police brutality and arbitrary arrests.
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[FN6] It is not clear to which reports the complainants are referring. No
information is provided by the complainants in this regard.
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State Party's Supplementary Submission:
6. On 22 September 2008, the State party submits that it has in several
previous complaints before the Committee asked for the assistance of one of
its embassies in order, inter alia, to verify information or documents
submitted by the complainants concerned, in particular, in relation to
asylum seekers from Azerbaijan. From the Views of the Committee in these
cases [FN7], it is evident that the reports from the Embassy in Ankara also
include findings that verify information submitted by the concerned
complainant as well as the authenticity of documents invoked. The State
party submits that the Embassy in Ankara is well aware of the importance of
the integrity and discretion of the person chosen, as well as the
sensitivity of the issues involved. The Embassy normally uses external
expertise for its reports in these cases, it exercises great caution in
selecting suitable persons to assist it and the persons chosen are
independent of the authorities and political parties in Azerbaijan. On this
occasion, the Embassy used the services of a human rights lawyer in Baku who
has a wide network of contacts among human rights organisations and
opposition political parties in Azerbaijan. The State party is of the view
that it is legitimate not to identify the lawyer engaged for security
reasons and states that his services were previously used in relation to
another case decided by the Committee: Z.K. v. Sweden, Communication no
301/2006, Views adopted on 9 May 2008, para. 4.5. In addition, the
conclusions presented in the report are supported by verifiable facts.
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[FN7] The State party refers to: A.H. v. Sweden, Communication No. 265/2005,
Views adopted on 16 November 2006; E.R.K. and Y.K. v Sweden, Communications
Nos. 270/2005 and 271/2005, Views adopted on 30 April 2007; and E.V.I. v.
Sweden, Communication No. 296/2006, Views adopted on 1 May 2007; and Z.K. v.
Sweden, Communication No. 301/2006, Views adopted on 9 May 2008.
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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 and is an abuse of the right of submission given the
non-authentic nature of the documents submitted by the complainants to
support their claims. 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 complainants' 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 they 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, and
that the risk of torture must be assessed on grounds that go beyond mere
theory or suspicion. While the risk does not have to meet the test of being
highly probable, 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 [FN8]. The Committee also recalls
from General Comment No.1 that considerable weight will be given, to
exercising the Committee's jurisdiction pursuant to article 3 of the
Convention, to findings of fact that are made by organs of the State party
concerned; but that the Committee is not bound by such findings and instead
has the power, provided by article 22, paragraph 4, of the Convention, of
free assessment of the facts based upon the full set of circumstances in
every case.
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[FN8] Communication No. 296/2006, E. V. I. v. Sweden, Views adopted on 1 May
2007; Communication No. 270 and 271/2005, E. R. K. and Y. K. v. Sweden,
Views adopted on 30 April 2007.
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8.4 The Committee notes that in its arguments against the claims advanced,
the State party makes reference to information presented in a report, dated
19 March 2007, provided to it by the Swedish Embassy in Ankara, following an
investigation by a person whose name has not been reveal by the State party.
It also notes that this investigation took place after the termination of
domestic proceedings and that the author has not had an opportunity either
to contest the information provided therein or to challenge the investigator
whose name has not been revealed before the domestic authorities. For these
reasons, the Committee considers that the State party should not have relied
upon this information in considering whether there is a real and personal
risk of torture for the complainants, and indeed the Committee itself does
not intend to take the contents of this report into account in its
consideration of this communication.
8.5 The Committee notes the claim that there is a risk that E. J. would be
tortured or ill-treated if deported to Azerbaijan, because of his past
political activities, and the claim that he was previously subjected to
torture and ill-treatment. On the latter issue, the Committee notes that the
complainants have failed to adduce any evidence that E. J. was subjected to
torture or ill-treatment in Azerbaijan and also notes their sole response to
the State party's argument on this point that the Committee should be
forward looking in assessing whether there is a current risk of torture or
ill-treatment.
8.6 As to E. J.'s alleged involvement in political activities, the Committee
notes that although he was a member of the ADP, it does not appear that he
was in a leading position, and thus would not attract the particular
interest of the Azerbaijani authorities if returned. Nor is there any
evidence that he has been involved, while in Sweden, in any activity which
would attract the interest of the same authorities four years after he left
Azerbaijan. In this regard, the Committee also notes that the activities in
which he was alleged to have been involved took place between January 2001
and May 2004 - more than four years ago. It notes further that a number of
persons defined by the CoE as political prisoners have been released by the
Azerbaijani authorities, following presidential pardons, in particular of
the ADP leader himself and that this has not been contested by the
complainants.
8.7 In the Committee's view, the complainants have failed to adduce any
other tangible evidence to demonstrate that E. J. 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, if not dependent on, that of E. J.,
the Committee concludes that the other complainants have also 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.
The Committee 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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