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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 13 November 1998,
Having concluded its consideration of communication No. 88/1997, submitted
to the Committee 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, her counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is A., a Tunisian citizen born in 1972,
currently residing in the Netherlands, where he is seeking asylum. He claims
that his forced return to Tunisia would constitute a violation by the
Netherlands of article 3 of the Convention against Torture. He is
represented by counsel.
Facts as Presented by the Author
2.1 Author reports that he has had problems with the Tunisian authorities
since he was a student because he used to criticize the Government at
school. Because of that and an argument he had with his headmaster about a
private issue he was dismissed from school in 1988. In July 1989 he
travelled to France with a temporary visa and worked there illegally. He had
the intention to study in France but after eight months was caught and sent
back to Tunisia. Three months later he travelled again to France but he was
again caught 13 days after his arrival and sent back.
2.2 After his return to Tunisia the author started private lessons with a
teacher who happened to be a prominent member of the illegal Al-Nahda
movement although he never told him that. On several occasions he was picked
up by the police and held for a few days during which he was interrogated
about his teacher and beaten. At a certain point an arrest warrant was
issued against the teacher, who asked the author for help in leaving the
country. The author knew the border region well because his family came from
that part of the country. That is why he was able to help the teacher cross
the border. In May 1992 the author was arrested. For two weeks he was beaten
daily and held in a sort of chicken coop at the police station. That
treatment left him with scars on his back and three broken toes. At the end
of those two weeks he was sent for military service which he had not yet
performed despite having been called up in 1991. As a punishment he was sent
to Ghafsa, an army centre in the desert, where he was again subjected to
ill-treatment, such as being kept for several days in an underground cell.
In August 1992 he managed to escape and left the country immediately through
a small border post.
2.3 The author stayed in Algeria for a day and a half and then spent a month
and a half in Morocco, where he destroyed his passport. He then went to
Ceuta where he stayed for a month and a half and to the Spanish mainland,
where he stayed until December 1993. Then he went to Paris where he stayed
until March 1994. All these stays were illegal. He arrived in the
Netherlands on 21 March 1994 where he asked for asylum and stated that he
was an Iraqi national. On 20 September 1994, during an interview with
immigration officials, he told them that his name was A. and that he had
Algerian nationality. On 14 December 1995 the Secretary of Justice rejected
his refugee claim and on 19 June 1996 his appeal was turned down by the
President of the Regional Court in Amsterdam. On 15 July 1996, his
application for review of the decision of 14 December 1995 was rejected. On
17 January 1997, his appeal against the rejection was dismissed by the
President of the Regional Court in Amsterdam.
2.4 On 10 February 1997, the author was arrested by the police in Haarlem
during an inspection of the company where he worked. This time he informed
the police that he was of Tunisian nationality, but refused to give his real
name unless he was given assurances that he would not be sent back to
Tunisia. While in detention he filed another request for asylum that was
rejected by the Secretary of Justice on 28 February 1997. On 5 March 1997
the author appealed this decision to the President of the Regional Court in
Hertogenbosch. The appeal was turned down on 22 October 1997 and the
expulsion was planned for 25 October 1997.
The Complaint
3.1 Counsel states that the hearing into the author's claim before the court
on 22 October 1997 took place without his and the author's presence and that
a request for postponement awaiting relevant medical evidence which would
only be available on 23 October was rejected by the court. The reason for
the haste was that the Tunisian embassy had issued a laissez-passer for the
author which would only be valid for a few days.
3.2 Counsel provides the report of a follow-up interview held on 24 February
1997 between the author and the Immigration and Naturalization Department in
which the author acknowledged that his real name was not A. and explained
that he would only reveal his real name and provide proof of his identity if
he was given assurances that he would not be sent back to Tunisia. He also
said that his father had experienced problems when he tried to obtain an
extract from the birth register after his departure. He was questioned by
officials of the municipality and later by the police who asked him for the
author's whereabouts.
3.3 Counsel indicates that according to reports by Amnesty International
there is a consistent pattern of gross human rights violations in Tunisia.
He also provides copy of a letter sent by the United Nations High
Commissioner for Refugees on 4 March 1997 to a colleague of his in
connection with the asylum request of another Tunisian in which the
following is stated: "We can confirm that the mere fact of being perceived
by the Tunisian authorities as a member or supporter or even having just
simple contacts with the Al-Nadha movement could lead to persecution.
Moreover, we are in fact aware that some individuals have been interrogated
and even harassed by the Tunisian police on the mere ground of having
received letters from Tunisians abroad who are considered by the Tunisian
authorities to be members of Al-Nadha. Therefore, claims of persecution from
asylum seekers of the first mentioned category may well be of a nature that
would entitle them to be recognized as refugees."
3.4 The author claims that if he is returned to Tunisia he will be arrested
for having deserted and that his desertion would be construed by the
Tunisian authorities as evidence of his links with the Al-Nahda movement. In
view of his experience during his previous detentions he believes he will be
subjected to torture again.
State Party's Observations
4.1 On 24 October 1997 the Committee, acting through its Special Rapporteur
for new communications, transmitted the communication to the State party for
comments and requested the State party not to expel or deport the author to
Tunisia while his communication was under consideration by the Committee.
4.2 In a submission dated 23 December 1997 the State party indicates that
the author applied for asylum on 24 March 1994, after he had been discovered
living illegally in the Netherlands under the name of M.A.O., born in Iraq.
Later on, he declared to the authorities that he was in fact an Algerian
national and that his name was A. His application was rejected by decision
of 14 December 1995. He then lodged an objection against this decision and
asked the President of the District Court for an interim injunction to
prevent his expulsion. In the objection he claimed to have Tunisian
nationality and to live in fear of the Tunisian authorities. The application
for an interim injunction was dismissed on 19 July 1996 and the author's
objection was held to be unfounded by decision of 15 July 1996. An appeal
against this decision was declared to be unfounded by judgement of 17
January 1997.
4.3 On 10 February 1997 the author was detained following a check for
illegal labour in a company and placed in custody pending expulsion. On 12
February 1997 he submitted a second application for asylum, which was
rejected by decision of 28 February 1997. This decision was delivered to the
author on 4 March 1997 and, at the same time, he was notified that he would
have to leave the Netherlands immediately.
4.4 On 5 March 1997 the author lodged an objection against the negative
decision and filed an appeal with the District Court. He also applied to the
President of the District Court for an interim injunction to prevent his
expulsion. This request was again refused, and the objection and appeal were
again declared to be ill-founded. Following his communication to the
Committee and the Committee's request under rule 108, paragraph 9, of its
rules of procedure the author was released from custody on 11 November 1997
and his expulsion suspended.
4.5 The State party considers that the author has exhausted all domestic
remedies and, not being aware of any other grounds for inadmissibility, has
no objection to the admissibility of the communication.
4.6 As for the merits of the case, the State party argues that in the
proceedings that followed his first request for asylum the author stated
that he had previously lied about his nationality and that he was Algerian.
He explained that in 1989 he had fallen in love with the daughter of his
school's headmaster. The latter did not accept the liaison and in the course
of an argument the author destroyed some property. As a result he was
detained in a youth detention centre for three months. After his release he
went to France but the French authorities deported him in 1990.
4.7 The author stated that he had been called up for military service in
1992 but failed to comply because of a lung condition. As a result he was
arrested in 1993. His request for exemption on medical grounds was denied.
Three months later he deserted and stayed with a friend until he left for
Italy on 23 November 1993. He stayed in Italy for two and a half months
before travelling by train to the Netherlands.
4.8 In the additional grounds accompanying the objection of 4 April 1996 the
author stated that he in fact came from Tunisia where he had had problems
with the authorities because of his ties with a teacher who was a
fundamentalist and a supporter of the Al-Nahda party. He claimed that he had
been arrested, questioned and beaten on several occasions and accused of
disseminating fundamentalist pamphlets.
4.9 In the autumn of 1992, after having helped the teacher to escape to
Algeria, he was arrested and questioned for nine days concerning the
latter's whereabouts. He also stated that he had been ill-treated: his feet
were beaten with a stick, breaking three of his toes, and he remained
confined in a chicken coop. When he reported back one month after his
release he was informed that he would be prosecuted and brought to trial.
4.10 He also stated that he had heard from his father that friends in
similar circumstances had been sentenced to three years of imprisonment and
that he himself had been sentenced to 15 months for desertion. The author
expects to be punished for his desertion when he returns to his country.
4.11 The State party argues that the general situation in Tunisia is not
such that asylum seekers from that country can automatically be regarded as
refugees and that the author should be able to argue plausibly that certain
facts and circumstances exist that objectively justify his fear of
persecution within the meaning of the law relating to refugees.
4.12 The author's individual account is above all implausible. He has made
conflicting statements on a number of points, including his nationality, the
reasons for his journey to the Netherlands, the route by which he travelled
there and his arrests in Tunisia. Furthermore, during the preparations for
his expulsion to Tunisia it was established on the basis of fingerprints
that he is known to the Tunisian authorities under the name of M. The
inconsistencies in the author's statements are of a substantive nature and
indeed raise doubts about the general veracity of his claims.
4.13 The author has at no time been politically active, nor has he put
himself in the public eye as such in any other way. During the proceedings
he stated that he had no contact with the Al-Nahda party. He had problems
solely because he had contacts with a teacher who was a member and had
helped him to flee the country. Even if it is true that the author did help
that person, he has not convincingly shown that he experienced problems with
the Tunisian authorities as a result and that he was held in detention for
nine days. Nor has the author argued convincingly that he is to be
prosecuted and brought to trial. Even if this were true, the fact that the
author was merely told to report back a month after his release certainly
does not suggest that the Tunisian authorities consider him as a serious
opponent.
4.14 The author has also argued that he had been found guilty of desertion.
The State party does not consider this plausible, because it is based solely
on a statement made by the author's father and is not supported by any
documentary proof. The State party does not believe, in any case, that he
deserted on the basis of any political or religious conviction. It is not
plausible that the author would experience problems upon returning to his
country because of his desertion, since he cannot be regarded as a
dissident. It has not been convincingly argued that any punishment imposed
for refusal to perform military service will be disproportionately severe or
that the author will be subjected to discriminatory persecution instead of
an ordinary punishment.
4.15 The State party contends that whenever an asylum seeker states that he
has been ill-treated or tortured the Immigration and Naturalization Service
asks the Medical Assessment Section of the Ministry of Justice to give an
opinion. The doctors attached to this section can either examine the person
concerned themselves or seek the opinion of a medical practitioner who has
treated him. Given the limited capacity of this section, however, asylum
cases are only submitted to it for assessment when there are good reasons to
subject the individual concerned to further examination in the interest of
assessing his or her request for asylum. Aside from this, the individual
concerned or his legal representative can always consult a medical
practitioner independently. The latter can then supply a medical certificate
stating that certain scars could have been caused by the alleged
ill-treatment for use in the proceedings and the assessment of the request
for asylum.
4.16 In the present case the author did not indicate that he had
psychological problems until a letter of 17 October 1997, i.e. three and a
half years after his arrival in the Netherlands. During the proceedings
concerning his first asylum request he never mentioned having had traumatic
experiences.
4.17 In connection with the author's alleged medical problems, the State
party observes that he has not submitted a single medical document. His
claims about certain scars were too insubstantial to prompt a medical
examination. Even if it is assumed that the author is indeed experiencing
psychological problems, the Aliens Advisory Office held, in its report on
this case dated 23 October 1997, that, given the available information on
the opportunities for obtaining psychiatric treatment in Tunisia, there is
no need for the author to remain in the Netherlands for the purpose of
receiving psychiatric treatment.
4.18 The State party further contends that, according to sources such as
Amnesty International and the UNHCR, supporters of the Al-Nahda party risk
being subjected to torture or inhuman treatment in Tunisian prisons. For
this reason it exercises particular care in decisions on requests for asylum
received by members of this group. It has been established, however, that
the author is not a supporter of the Al-Nahda party. Moreover, he has failed
to make a convincing case for his assertion that because of his ties with
supporters of this party he risks being tortured in prison. In any case, the
author has failed to argue plausibly that on the basis of his ethnic
background, his alleged political affiliation and his history of detention
he would be in danger of being subjected to torture upon his return. The
State party is therefore of the opinion that the communication is
ill-founded.
Counsel's Comments
5.1 In his comments on the observations made by the State party, counsel
points out that the State party did not include in its submission to the
Committee the information provided by the author in his follow-up interview
with the immigration authorities where he acknowledged having lied about his
identity and nationality and explained his reasons for having done so. The
inconsistencies referred to by the State party were explained in that
interview, a report of which has been provided to the Committee. Counsel
also refers to previous jurisprudence in which the Committee noted that some
of the author's claims and corroborating evidence had been submitted only
after the refugee claim had been refused by the refugee board and
deportation procedures had been initiated and concluded that this behaviour
was not uncommon among victims of torture.
5.2 With respect to the different statements about his nationality, the
author explained that during his first interviews he was too afraid to
immediately give his correct country of origin and name in view of the fact
that Tunisia is a popular tourist destination and for that reason Tunisians
are not granted asylum in Europe. In any case the Tunisian Embassy has
confirmed that the author is indeed a Tunisian citizen.
5.3 Counsel also contends that the court tried the author's case in great
haste in order not to allow a laissez-passer issued by the Tunisian Embassy
for a few days to expire. As a result the author and his counsel had no
possibility to provide the court with useful information in support of the
author's claim.
5.4 Counsel stresses that the author was tortured and kept for 15 days (not
9 as indicated in the State party's submission) in a chicken coop (a wooden
cage especially designed to lock people up) at police headquarters at Kaf.
The State party barely mentions the fact that his toes were broken and he
has scars on his back as a result of torture. The author could have provided
many details about the places in which he was held and those details could
have been verified by the Dutch authorities, for example the fact that
soldiers sent to Ghafsa are mainly those considered to be opponents of the
Government and that they are treated completely differently from soldiers in
any other barracks. The report on the follow-up interview shows, however,
that the authorities never asked for such details and that those provided by
the author were ignored, as were the report of Amnesty International and the
letter from UNHCR referred to above. Counsel further argues that in the
period 1990-1992 the author's sister was arrested, convicted and held in
prison for six months because she was openly sympathising with Al-Nahda.
5.5 With respect to the medical issues, counsel argues against the State
party's assertion that the author did not submit a single medical document.
The authorities had received a letter (copy of which is provided to the
Committee) dated 20 October 1997 from a social worker who has been in close
contact with the author since 1995 and reports serious mental and physical
difficulties as a result of torture and the fear of being sent back to
Tunisia. The letter indicates that the author suffered from sleeping
disorders. Periods of sleeplessness alternated with periods of troubled
sleep during which he had recurrent nightmares in which he was arrested and
relived his experiences of being maltreated. He also went through periods of
depression and lived in constant fear of having to return to Tunisia and
being arrested and tortured again. His physical condition during the day was
characterized by continuous tension which led to headaches, stomach aches
and back complaints. He also had respiratory difficulties caused by a
medical disorder of the lungs. According to the social worker the author had
told him that he had been tortured following his contacts with a politically
active member of the Al-Nahda party. This fact together with his desertion
from the army were considered offences by the Tunisian authorities. The
author also described to the social worker the kind of treatment to which he
had been subjected and showed him the scars on his back. In his view, the
fact that the author first gave two other identities was the result of lack
of trust in the authorities and his fear of not being taken seriously. The
social worker also stated that in view of his health problems he had
referred the author to a Riagg physician from whom he had not received much
assistance. In the counsel's view that letter shows that the State party is
wrong when it suggests that the claim of serious psychological problems was
used mainly in order to prolong the asylum procedure.
5.6 Counsel also finds it surprising that the medical investigation carried
out by the Bureau Vreemdelingen Advisering dated 23 October 1997 was merely
limited to establishing that there are facilities for psychiatric help in
Tunisia, and that the statements of the author about the torture, the scars
he bears and the traumas he has indicated were not even considered. This,
along with the letter from the social worker, should have prompted a more
thorough examination.
5.7 Counsel also provides copy of a medical report dated 23 October 1997
made by the psychiatrist who examined the author at the aliens detention
centre "De Geniepoort" in which it is indicated that the author presents a
suspicious attitude which might possibly result from a psychiatric disorder.
It is also indicated that, because of that attitude and the incomplete
information concerning his prior history, a diagnosis cannot be made with
certainty but a schizophrenic development cannot be excluded. Further
examination is required.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a communication, 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. The Committee also
notes that all domestic remedies have been exhausted and finds that no
further obstacles to the admissibility of the communication exist. Since
both the State party and the author's counsel have provided observations on
the merits of the communication, the Committee proceeds with the
consideration of those merits.
6.2 The issue before the Committee is whether the forced return of the
author to Tunisia would violate the obligation of the Netherlands under
article 3 of the Convention not to expel or to return a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
6.3 The Committee must decide, pursuant to paragraph 1 of article 3, whether
there are substantial grounds for believing that the author would be in
danger of being subjected to torture upon return to Tunisia. In reaching
this decision, the Committee must take into account all relevant
considerations, pursuant to paragraph 2 of article 3, including the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights. The aim of the determination, however, is to establish whether
the individual concerned would be personally at risk of being subjected to
torture in the country to which he or she would return. 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 return to that country; specific grounds must exist indicating 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.
6.4 Reports from reliable sources have over the years documented cases
suggesting that a pattern of detention, imprisonment, torture and
ill-treatment of persons accused of political opposition activities,
including links with the Al-Nahda movement, exist in Tunisia.
6.5 The Committee notes that in the proceedings that followed his first
request for asylum the author lied about his identity and his nationality
and expressed a number of inconsistencies as to the reasons that prompted
his departure from Tunisia. In the Committee's view, however, these
inconsistencies were clarified by the explanations given by the author in
his interview with immigration authorities on 24 February 1997, explanations
which have not been referred to in the State party's submission.
6.6 With respect to the medical evidence provided by the author, in the
Committee's view the State party has failed to explain why his claims were
considered insufficiently substantial as to warrant a medical examination.
6.7 The author has repeatedly stated that he is not a supporter of the
Al-Nahda movement. This fact leads the State party to conclude that the
Tunisian authorities would not have interest in him. The Committee notes,
however, that the State party does not dispute that the author was tortured
while held in police custody as a result of assisting an Al-Nahda member to
flee to Algeria and emphasizes the fact that it occurred because of the
Al-Nahda association. It also notes that the author escaped from the
barracks where he was performing military service. If the author was
tortured in the past despite not being an Al-Nahda supporter, he could be
tortured again in view of his past history of detention, his assistance of
an Al-Nahda member to flee to Algeria and his desertion from the military
barracks in Ghafsa.
6.8 In the circumstances, the Committee considers that substantial grounds
exist for believing that the author would be in danger of being subjected to
torture if returned to Tunisia.
7. In the light of the above, the Committee is of the view that, in the
prevailing circumstances, the State party has an obligation, in accordance
with article 3 of the Convention, to refrain from forcibly returning the
author to Tunisia or to any other country where he runs a real risk of being
expelled or returned to Tunisia.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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