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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. 326/2007, submitted to
the Committee against Torture by M. F. under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Having taken into account all information made available to it by the
complainant, his counsel and the State party,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is M. F., a national of Bangladesh, born in 1983. He
faces deportation from Sweden to Bangladesh. He claims that his deportation
would constitute a violation by Sweden of articles 3 and 16 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. The complainant is represented by counsel.
1.2 On 3 July 2007, the Rapporteur for new complaints and interim measures
requested the State party not to deport the complainant to Bangladesh while
his case is under consideration by the Committee, in accordance with rule
108, paragraph 1, of the Committee's rules of procedures. On the same day,
the State party acceded to this request.
The Facts as Presented ay the Complainant
2.1 The complainant lived with his family in the city of Munshigonj,
Bangladesh. He was a member of the Awami League, one of the main political
parties in the country. In this capacity, he took part in demonstrations and
political meetings, distributed leaflets and put up posters. On 1 October
2001, the day of the general elections, the complainant and others were at a
polling station, protesting about the fact that supporters of the Bangladesh
Nationalist Party (BNP) were not allowing people to vote for the Awami
League. The complainant was assaulted by BNP supporters with hockey sticks.
The Bangladesh Rifles [FN1] subsequently closed the polling station.
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[FN1] Part of the Bangladeshi armed forces.
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2.2 On 20 October 2001, BNP supporters kidnapped the complainant and took
him to a secret, isolated room in Islampur, where he was subject to severe
ill-treatment. He was hit with truncheons on his back and burnt with
cigarettes on his feet. He was released on 24 October 2001 and taken to
Munshigonj City Hospital, where he was treated for burns and for injuries to
his back. He was hospitalized until 26 December 2001 [FN2] . After being
informed that BNP supporters planned to assault him again, he left the
hospital and went to Dhaka and then Chittagong. He complained to the police
about this assault, but no action was taken. [FN3]
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[FN2] Please note that a "release certificate" allegedly issued by the
hospital states that the complainant was hospitalized from 25 September 2001
to 26 December 2001.
[FN3] There are contradictory statements as to whether a complaint was filed
or not.
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2.3 On an unspecified date in October/November 2002, the complainant was
taken by BNP supporters and the police to a police station in Munshigonj. He
was kept there for two days and he was allegedly tortured. He was released
after his relatives bribed the police. After his release he stayed in the
hospital for around 15 days and later travelled to Dhaka, where he stayed
for six months.
2.4 On 23 May 2003, the complainant read in a newspaper that one of his
friends had been murdered. Fearing for the complainant's security, his
family decided that he should leave the country. With the assistance of a
smuggler, the complainant left Bangladesh on 13 October 2003. Upon arrival
in Sweden, on 14 October 2003, he applied for asylum. The Migration Board
rejected his application on 3 March 2004. The Aliens Appeal Board confirmed
this decision on 21 April 2005.
2.5 After the complainant's arrival in Sweden, the complainant's father
allegedly was threatened several times and the family's house was
vandalized. His father also informed him that the complainant was accused of
the murder of a BNP supporter in Court Gaon, whose body was found on 25 May
2003.
2.6 On 8 February 2006, the complainant filed a new application for a
residence permit. On 11 August 2006, the Migration Board rejected it. In the
new application, he submitted new evidence, including two police reports and
charge sheets, which showed that M. F. was among those charged for murdering
a certain Mr. H. on 10 September 2001 and also that he was charged for
attacking a BNP meeting with bombs in 2005.[FN4] He also submitted two
letters from M. A. A., the complainants' lawyer in Bangladesh, who allegedly
confirmed that the 2001 case had been completed and that life imprisonment
or death penalty sentences could be expected. The complainant also referred
to a number of reports regarding the general political situation in the
country, the situation of the judiciary and the use of torture in
Bangladesh.
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[FN4] The complainant states that the fact that this second crime took place
while he was in Sweden proves that it was a false accusation.
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2.7 In addition, the complainant submitted medical certificates by Dr. P.
K., according to which he was treated for mental illness since mid-November
2005. Dr. P. K. concluded that the complainant's history of past
ill-treatment and present mental health problems, including sleep
disturbances, recurring nightmares, intrusive memories and anxiety,
especially related to events reminding him of the trauma, fulfilled the
criteria of Post Traumatic Stress Disorder (PTSD).
The Complaint
3. The complainant claims that his deportation to Bangladesh would
constitute a violation by Sweden of articles 3 and 16 of the Convention. He
fears assassination by BNP supporters if returned to Bangladesh. He also
fears being arrested and tortured by the police because of the accusations
against him. He adds that the prison conditions in the country amount to
cruel, inhuman or degrading treatment.
State Party's Observations on the Admissibility and the Merits
4.1 On 15 February 2008, the State party challenged the admissibility and
merits of the complaint. On admissibility, and as regards article 3, it
submits that the complaint is manifestly unfounded and therefore
inadmissible. With respect to article 16, it submits that this part of the
complaint should be declared inadmissible ratione materiae as incompatible
with the provisions of the Convention. In addition, the State party submits
that the complainant's claim on article 16 lacks the minimum substantiation
required, for purposes of admissibility.
4.2 On the merits, the State party submits 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. [FN5] As regards the current general human
rights situation in Bangladesh, the State party acknowledges that it is
problematic, but points to an improvement in the last few years.
Nevertheless, violence is a pervasive feature of politics in the country and
police reportedly use torture, beatings and other forms of abuse.
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[FN5] Communication No.150/1999, S.L. v. Sweden, Views adopted on 11 May
2001, para. 6.3.
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4.3 The State party also refers to the Committee's jurisprudence [FN6] 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 and that it is for the complainant to
present an arguable case.[FN7] In addition, 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. It draws the Committee's
attention to the fact that several provisions of the Aliens Act, 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 type of test as the Committee when examining complaints under the
Convention.
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[FN6] Communication No.103/1998, S.M.R. and M.M.R. v. Sweden, Views adopted
on 5 May 1999, para. 9.7.
[FN7] S.L. v. Sweden, op. cit., para.6.4.
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4.4 The State party claims that the complainant's return to Bangladesh would
not entail a violation of article 3 of the Convention. The complaint is
founded on the claim the complainant risks torture upon return to his
country of origin, due to his past arrest and torture on two occasions
because of his political activity, once by BNP supporters and once by BNP
supporters and the police. He claims that he also risks being arrested due
to false accusations against him.
4.5 As regards the alleged risk of torture by political opponents, the State
party refers to the definition of "torture" of article 1 of the Convention
and to the requirement that torture be "inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person
acting in an official capacity". It recalls the Committee's jurisprudence
that the issue of whether a State party has an obligation to refrain from
expelling a person who might risk pain or suffering inflicted by a
non-governmental entity, without the consent or acquiescence of the State,
falls outside the scope of article 3.[FN8] In any event, the complainant has
not substantiated his claim that he would run such a risk if returned to
Bangladesh. In this regard, the State party notes that there is reason to
question the credibility of the complainant's statements. In this context,
it points to several factual inconsistencies, including inconsistencies on
the dates of the alleged arrests. It also indicates that the complainant did
not claim to have been subjected to torture at the first interview.
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[FN8] Communication No. 83/1997, G.R.B. v. Sweden, Views adopted on 15 May
1998, para. 6.5.
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4.6 With respect to the risk of torture by the police, because of a previous
instance when he was allegedly tortured by BNP supporters and the police at
the Munshigonj police station in 2002, the State party notes that this event
was not mentioned during the first interview with Swedish migration
authorities. The events in question took place more than five years ago and
there is nothing to indicate that his political opponents would have any
interest in him at present. The complainant was not in a leading position in
the party and any harassment on account of his political activities would
have a local character and could be avoided by moving, as he did when he
moved to Chittagong and Dhaka. The State party argues that, according to the
Committee's jurisprudence, [FN9] the requirement for the torture to have
occurred in the recent past has not been met.
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[FN9] Communication No. 191/2001, S.S. v. The Netherlands, Views adopted on
5 May 2003, para. 6.6.
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4.7 Regarding the complainant's allegations that he risks arrest and torture
on account of false accusations against him, the State party questions the
credibility of his version. The complainant did not mention the murder
accusations until his second interview with the Swedish migration
authorities. In addition, the charge sheets submitted by the complainant
over two years after he first mentioned the accusations, do not refer to the
murder that took place in May 2003, but to crimes allegedly committed in
2001 and 2005. [FN10] With the assistance of the Swedish Embassy in Dhaka,
the State party was able to conclude that the police reports and charge
sheets submitted by the complainant were not authentic. Indeed, a
sub-director of the Munshigonj Magistrate Court indicated that the seals,
signatures and contents of the charge sheets, police reports and the
complaint allegedly filed by the author's father were forged. In addition,
the case numbers referred to in those documents, when checked with the
Court's register, were not related to cases involving the complainant. As
regards the letters sent by the complainant's lawyer, they did not state a
correct address, but that of a tribunal where hundreds of lawyers practice.
Furthermore, the information on the letters sent by the complainant's lawyer
does not coincide with the findings of the local investigations and contains
fake case numbers, which could either not be verified or referred to a theft
case unrelated to the complainant. The Swedish Embassy in Dhaka did not find
any evidence that the complainant had been sentenced, prosecuted or accused
for any of the crimes that he mentioned.
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[FN10] See paras. 2.5 and 2.6.
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4.8 On the alleged violation of article 16, the State party recalls the
Committee's Jurisprudence [FN11] that the aggravation of the condition of an
individual's physical or mental health by virtue of a deportation is
generally insufficient, in the absence of additional factors, to amount to
degrading treatment in violation of said provision. It maintains that no
such other factors are present in the instant case. It also draws the
Committee's attention to the jurisprudence of the European Court of Human
Rights, [FN12] which held that ill-treatment must attain a minimum level of
severity for it to fall within the scope of article 3 of the European
Convention on Human Rights and established that only where there are
compelling humanitarian considerations at stake may the enforcement of an
expulsion decision entail a violation of article 3. The State party submits
that such exceptional circumstances do not exist in the present case.
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[FN11] Inter alia, G.R.B. v. Sweden, loc. cit.; Communication No. 49/1996,
S.V. v. Canada, Views adopted on 15 May 2001, para. 9.9; Communication No.
220/2002, R.D. v. Sweden, Views adopted on 2 May 2005, para. 7.2.
[FN12] Cruz Varas and others v. Sweden, judgment of 20 march 1991 (Series A
no. 201, para. 83); Bensaid v. the United Kingdom, judgment of 6 February
2001, (Reports of Judgments and Decisions 2001-I, p. 319, para. 40); and D.
v the United Kingdom, judgment of 2 May 1997, (Reports of Judgments and
Decisions 1997-III, p. 793, paras. 51-54).
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4.9 The State party refers to the two medical certificates submitted by the
complainant, which state that he has been treated for mental illness since
18 November 2005 and that he has seen the doctor on five occasions. That the
complainant did not receive any treatment prior to November 2005 and that he
did not invoke any medical evidence until his application was pending before
the Aliens Appeal Board, may indicate that his mental condition deteriorated
primarily as a consequence of the Migration Board's decision to reject his
asylum request. Furthermore, there are reports indicating that mental care
is available in Bangladesh. [FN13] Consequently, the State party argues that
the possible aggravation of the complainant's state of mental health due to
his deportation would not amount to cruel, inhuman or degrading treatment.
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[FN13] Home Office, Border and Immigration Agency, Country of Origin
Information Report: Bangladesh, published 31 August 2007, para. 28.09.
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5. On 11 September 2008, the complainant submitted that he did not have any
comments on the State party's observations.
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.
6.2 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.
6.3 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 complainant has complied with article 22,
paragraph 5 (b).
6.4 Concerning the claim relating to the aggravation of M. F.'s mental
condition on account of his expulsion to his country of origin, the
Committee recalls its prior jurisprudence that the aggravation of the
condition of an individual's physical or mental health by virtue of a
deportation is generally insufficient, in the absence of additional factors,
to amount to degrading treatment in violation of article 16. [FN14] The
Committee notes the medical certificates presented by the complainant which
state that he suffers from PTSD. The Committee also notes the State party's
contention that mental health care is available in Bangladesh, a statement
not refuted by the complainant. In the absence of exceptional circumstances
and in view of complainant's failure to respond to the State party's
argument that medical care was available in Bangladesh, the Committee
considers that he has failed sufficiently to substantiate this claim, for
purposes of admissibility, and it must accordingly be considered
inadmissible.
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[FN14] See G.R.B. v. Sweden, op.cit., para.6.7; Communication No. 183/2001,
B.S.S. v. Canada, Views adopted on 12 May 2004, para.10.2; and Communication
No. 245/2004, S.S.S. v. Canada, Views adopted on 16 November 2005, para.7.3.
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6.5 With respect to the complainants' claim under article 3 of the
Convention, the Committee finds no further obstacles to the admissibility of
the complaint and accordingly proceeds with its consideration on the merits.
Consideration of the Merits
7.1 The issue before the Committee is whether the complainants' removal to
Bangladesh 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 or she would
be in danger of being subjected to torture.
7.2 In assessing whether there are substantial grounds for believing that
the complainant would be in danger of being subjected to torture if returned
to Bangladesh, the Committee must take account of all relevant
considerations, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. However, the aim of such an
analysis is to determine whether the complainant runs a personal risk of
being subjected to torture in the country to which he would be returned. It
follows that the existence of a pattern of gross, flagrant or mass
violations of human rights in a country does not as such constitute
sufficient reason for determining that a particular person would be in
danger of being subjected to torture on return to that country; additional
grounds must be adduced to show that the individual concerned would be
personally at risk. Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances.
7.3 The Committee recalls its General Comment No.1 on article 3, [FN15]
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, 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. [FN16] Furthermore, the
Committee observes that considerable weight will be given, in exercising the
Committee's jurisdiction pursuant to article 3 of the Convention, to
findings of facts that are made by organs of the State party concerned; but
that it 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. [FN17]
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[FN15] General Comment No. 1: Implementation of article 3 of the Convention
in the context of article 22 (1996), paras. 6 and 7, U.N. Doc. HRI/GEN/1/Rev.8.,
p. 347.
[FN16] Communication No. 203/2002, A.R. v. The Netherlands, Views adopted on
21 November 2003, paragraph 7.3.
[FN17] A/53/44, annex IX, CAT General Comment No. 1, paragraph 9.
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7.4 In the present case, the Committee observes that the main reasons for
which the complainant fears a personal risk of torture if returned to
Bangladesh are that he was previously subjected to torture for his
membership in the Awami League by BNP supporters, and that he risks
imprisonment and torture by the police upon return to Bangladesh because of
his alleged homicide charges. In addition, the complainant states that, if
convicted, he risks being subjected to inhuman or degrading treatment in
prison.
7.5 As to his claims of past torture, the Committee notes that the assault
of 1 October 2001, the kidnapping and torture of 20 October 2001 and the
arrest and torture that took place in October/November 2002 allegedly
involved BNP supporters. In this regard, the Committee recalls that the
State party's obligation to refrain from forcibly returning 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 is directly linked to
the definition of torture as found in article 1 of the Convention. For the
purposes of the Convention, according to article 1, "the term 'torture'
means any act by which severe pain or suffering, whether physical or mental,
is intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an act
he or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or
at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity". The Committee
recalls its jurisprudence that the issue whether the State party has an
obligation to refrain from expelling a person who might risk pain or
suffering inflicted by a nongovernmental entity, without the consent or
acquiescence of the Government, falls outside the scope of article 3 of the
Convention. [FN18]
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[FN18] See, inter alia, G.R.B. v. Sweden, loc. cit; S.S. v. The Netherlands,
op.cit., para. 6.4; Communication No. 138/1999, M.P.S. v. Australia, Views
adopted 30 April 2002, para. 7.4.
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7.6 The Committee observes that the October/November 2002 events, allegedly
involved torture by BNP supporters in collaboration with the State party's
police. Even if the Committee were to accept the claim that the complainant
was subjected to torture in the past, the question is whether he currently
runs a risk of torture if returned to Bangladesh. It does not necessarily
follow that, six years after the alleged events occurred, he would still be
at risk of being subjected to torture if returned to Bangladesh in the near
future. [FN19] In this regard, the Committee notes that, other than being
wanted for alleged homicide charges, the complainant has failed to provide
information on why he would be of interest to the local authorities.
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[FN19] S.S.S. v Canada, op.cit. and Communication No. 126/1999, Haad v.
Switzerland, Views of 10 May 2000.
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7.7 In relation to the charges which the complainant contends were filed
against him, the Committee notes the State party's submission that the
charge sheets, police reports and letters submitted by the complainant are
not authentic. It also notes the State party's contention that the
complainant has not been sentenced, prosecuted for or accused of any of the
crimes alleged by him. The complainant has not contested these observations,
nor has he submitted any evidence to the contrary, even though he was given
the opportunity to do so. In this regard, the Committee recalls its
jurisprudence that it is normally for the complainant to present an arguable
case and that the risk of torture must be assessed on grounds that go beyond
mere theory and suspicion. [FN20]
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[FN20] General Comment No. 1, op. cit, para. 6. See also Communication No.
256/2004, M.Z. v. Sweden, Views adopted on 12 May 2006, para. 9.3;
Communication No. 214/2002, M.A.K. v. Germany, Views adopted on 12 May 2004,
para. 13.5; and Communication No. 150/1999, S.L. v. Sweden, op.cit, para.
6.3.
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7.8 In view of the above, the Committee does not consider it necessary to
examine the complainant's allegation that he risks inhuman or degrading
treatment if imprisoned in a Bangladeshi prison on account of the
above-mentioned charges.
7.9 On the basis of the information submitted, the Committee considers that
the complainant has not provided sufficient evidence that would allow it to
consider that he faces a foreseeable, real and personal risk of being
tortured if he is expelled 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, therefore concludes that the return of the
complainant to Bangladesh would not constitute a breach of article 3 of the
Convention by the State party.
[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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