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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 17 November 2003,
Having concluded its consideration of complaint No. 199/2002, submitted to
the Committee against Torture by Ms. Hanan Ahmed Fouad Abd El Khalek Attia
under article 22 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the complaint, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is Ms. Hanan Ahmed Fouad Abd El Khalek Attia, an
Egyptian national born on 13 July 1964, currently present in Sweden. She
claims that for Sweden to remove her to Egypt would violate article 3 of the
Convention. She is represented by counsel.
1.2 On 14 January 2002, pursuant to Rule 108(9), of the Committee's Rules of
Procedure, the State party was requested not to expel the complainant to
Egypt while her complaint was before the Committee. It was stated that this
request could be reviewed in the light of detailed information provided by
the State party on the whereabouts of the complainant's husband and his
conditions of detention. On 18 January 2002, further to the Committee's
request, the Swedish Migration Board decided to stay enforcement of the
expulsion decision until further notice, and, as a result, she remains
lawfully in Sweden at the present time.
The Facts as Presented
2.1 In 1982, the complainant's husband, Mr. A, was arrested on account of
his family connection to his cousin, who had been arrested for suspected
involvement in the assassination of the former Egyptian President, Anwar
Sadat. Before his release in March 1983, Mr. A was allegedly subjected to
"torture and other forms of physical abuse". Mr. A, active in the Islamic
movement, completed his studies in 1986 and married the complainant. He
avoided various police searches, but suffered difficulties, such as the
arrest of his attorney, upon bringing a civil claim in 1991 against the
Ministry of Home Affairs, for suffering during his time in prison.
2.2 In 1992, Mr. A left Egypt on security grounds for Saudi Arabia, and
thereafter to Pakistan, where the complainant and her children joined him.
After difficulties with passport non-renewal and confiscation by the
Egyptian embassy in Pakistan, the family left for Syria under assumed
Sudanese identities. There they were visited by family members from Egypt,
who were arrested and had their passports confiscated upon their return to
Egypt, in order to determine Mr. A's whereabouts. In December 1995, the
family moved to Iran under the same Sudanese identities.
2.3 In 1998, Mr. A was tried for terrorist activity in absentia before a
higher military court in Egypt, along with one hundred other accused. He was
found guilty of belonging to an Islamic fundamentalist group, Al-Gihad,
having intention to overthrow the Egyptian government, and was sentenced,
without possibility of appeal, to 25 years' imprisonment. In 2000, concerned
that warming ties between Egypt and Iran might result in his being returned
to Egypt, Mr. A and his family purchased air tickets under Saudi Arabian
identities for Canada, and claimed asylum during a transit stop in
Stockholm, Sweden, on 23 September 2000.
2.4 In his asylum application, he claimed that he had been sentenced to
"penal servitude for life" in absentia, and that if returned, he would be
executed as other accused allegedly had been. The complainant contended
that, if returned, she would be detained for many years, on account of her
status as Mr. A's wife and corresponding guilt by association. On 23 May
2001, the Migration Board invited the Swedish National Police Board (Special
Branch) to submit its opinion in the matter, and the Special Branch
subsequently conducted an interview with Mr A. On 3 October 2001, with legal
representation, the Migration Board held a "major inquiry" with Mr. A and
the complainant. On 30 October 2001, the Swedish National Police Board
(Special Branch) informed the Migration Board that Mr A. had a leading
position in an organisation guilty of terrorist acts and was responsible for
activities of the organisation. The case of Mr. A and the complainant was
thus remitted, on 12 November 2001, to the Government for decision pursuant
to chapter 7, section 11(2)(2) of the Aliens Act. In the Board's view, on
the information before it, Mr. A could be considered entitled to refugee
status, however the Special Branch assessment, which the Board saw no reason
to question, pointed in a completely different direction. The necessary
weighing of Mr. A's possible need for protection, as against the Special
Branch's assessment, was thus to be made by the Government. On 13 November
2001, the Aliens Appeals Board, to which the case had been forwarded, shared
the Migration Board's assessment of the merits and was also of the view that
the Government should decide the matter.
2.5 On 18 December 2001, the Government rejected the asylum applications of
Mr. A and the complainant. The reasons for these decisions are omitted from
the text of this decision at the State party's request and with the
agreement of the Committee. Accordingly, it was ordered that Mr. A be
deported immediately and the complainant as soon as possible. On 18 December
2001, Mr A. was deported, while the complainant evaded police custody; her
whereabouts remain unknown.
The Complaint
3.1 The complainant submits that her case is intimately bound up with that
of her husband Mr A., who denies any terrorist links. She alleges she would
be of great interest to the Egyptian authorities, as she would be expected
to possess valuable information about her husband and his activities. There
is thus a clear risk of detention and that Egyptian authorities would try
and obtain information from her through physical violence and torture.
3.2 The complainant criticises the lack of information as to the content and
sources of the Special Branch's information on Mr. A, observing that in any
event the desire of the Egyptian authorities to have him in custody on
account of his previous conviction was clear. The complainant questions the
value of the security guarantee provided by the Egyptian authorities.
Neither its contents nor its author are known to her. In any event, the
Egyptian authorities are more likely to pursue their own objectives than
respect assurances provided to foreign States. In a subsequent submission,
the complainant refers to a statement (urgent action) of 10 January 2002 by
Amnesty International considering the complainant to be at risk of torture
in the event of a return to Egypt due to her family links. In addition,
Amnesty International considered the security guarantee insufficient, as Mr
A.'s whereabouts since his arrival in Egypt on 18 December 2002 were unknown
and had not been advised to family, counsel or any other.
3.3 The complainant argues that, in contrast to the Convention on the Status
of Refugees, the Convention against Torture does not contain any exclusion
clause on security grounds and thus its protection is absolute. In addition,
the expulsion decision cannot be appealed, while a new application requires
new circumstances to be presented, of which there are none.
3.4 Generally, the complainant refers to a report in 2000 of the United
States' State Department that respect for fundamental human rights in Egypt
is poor. She contends that security forces mistreat and torture persons
suspected of terrorist connections, and conduct mass arrests of such
persons. A 1997 report of Amnesty International suggests a number of women
have been subjected to human rights violations, including arbitrary
detention, on account of family links.
The State Party's Submissions on the Admissibilty and Merits of the
Complaint
4.1 By submission of 8 March 2002, the State party contests both the
admissibility and the merits of the complaint. It regards the claim of
substantial grounds to fear torture in the event of a return to Egypt to
lack, in light of the security guarantees provided and the other
argumentation on the merits, the minimum substantiation necessary to render
a complaint compatible with article 22 of the Convention. [FN1]
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[FN1] See, for example, Y v Switzerland Case No 18/1994, Decision adopted on
17 November 1994.
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4.2 On the merits, the State party sets out the particular mechanisms of the
Aliens Act 1989 applicable to cases such as the complainant's. While asylum
claims are normally dealt with by the Migration Board and then the Aliens
Appeals Board, under certain circumstances either body may refer the case to
the Government, appending its own opinion. This constellation arises if the
matter is deemed to be of importance for the security of the realm or
otherwise for security in general or for the State's relations to a foreign
power (chapter 7, section 11(2)(2) of the Act). If the Migration Board
refers a case, it must first be forwarded to the Aliens Appeals Board which
provides its own opinion on the case.
4.3 An alien otherwise in need of protection on account of a well-founded
fear of persecution at the hands of authorities or others on account of
reasons listed in the Convention on the Status of Refugees (under chapter 3,
section 2, of the Act) may however be denied a residence permit in certain
exceptional cases, following an assessment of an alien's previous activities
and requirements of the country's security (chapter 3, section 4 of the
Act). However, no person at risk of being tortured may be refused a
residence permit (chapter 3, section 3 of the Act). In addition, if a person
has been refused a residence permit and has had an expulsion decision issued
against him or her, an assessment of the situation at the enforcement stage
must be made to avoid that an individual is expelled to face, inter alia,
torture or other cruel, inhuman or degrading treatment or punishment.
4.4 The State party recalls Security Council Resolution 1373 of 28 September
2001, which enjoins all Member States to deny safe haven to those who
finance, plan, support or commit terrorist acts, or themselves provide safe
haven. The Council called on Member States to take appropriate measures,
consistent with international human rights and refugee law, to ensure asylum
seekers have not planned, facilitated or participated in terrorist acts. It
also called upon Member States to ensure, in accordance with international
law, that the institution of refugee status is not abused by perpetrators,
organizers or facilitators of terrorist acts. In this context, the State
party refers to the Committee's statement of 22 November 2001, where the
Committee expressed confidence that responses to threats of international
terrorism adopted by States parties would be in conformity with their
obligations under the Convention.
4.5 With reference to the specific case, the State party details the
information obtained by its security services with respect to Mr. A which
led him to be regarded as a serious security threat. At the State party's
request, this information, while transmitted to counsel for the complainant
in the context of the confidential proceedings under article 22 of the
Convention, is not set out in the Committee's present decision, which is
publicly available.
4.6 The State party observes that on 12 December 2002, after referral of the
case from the Migration and Aliens Appeals Boards, a state secretary of its
Ministry of Foreign Affairs met with a representative of the Egyptian
government in Cairo, Egypt. At the State party's request and with the
Committee's agreement, details of the identity of the interlocutor are not
reflected in the text of the present decision. As the State party was
considering excluding Mr. A from protection under the Refugee Convention,
the purpose of the visit was to determine the possibility, without violating
Sweden's international obligations, including those arising under the
Convention, of returning Mr. A and his family to Egypt. After careful
consideration of the option of obtaining assurances from the Egyptian
authorities with respect to future treatment, the State party's government
concluded it was both possible and meaningful to inquire whether guarantees
could be obtained that Mr. A and his family would be treated in accordance
with international law upon return to Egypt. Without such guarantees, return
to Egypt would not be an alternative. On 13 December 2002, requisite
guarantees were provided by the official interlocutor in question.
4.7 The State party then sets outs in detail its reasons for refusing, on 18
December 2001, the asylum claims of Mr. A and the complainant. These reasons
are omitted from the text of this decision at the State party's request and
with the agreement of the Committee.
4.8 In response to the Committee's request for information on the
whereabouts and conditions of detention of Mr. A (see paragraph 1.2 above),
the State party informs that he is currently held at Tora prison, Cairo, in
pre-trial detention pending a re-trial for which preparations are in
progress. The prison is reportedly of a comparatively high standard and he
is said to be detained in a type of cell normally reserved for persons
convicted of non-violent offences. In accordance with the agreement of
Egyptian authorities, the Swedish Ambassador to Egypt met Mr. A on 23
January 2002 in the office of the prison superintendent. He was not
restrained by handcuffs or feet chains. He was dressed in ordinary clothes,
with hair and beard closely trimmed. He appeared to be well-nourished and
showed no signs of physical abuse. He did not seem to hesitate to speak
freely, and told the Ambassador that he had no complaints as to his
treatment in prison. Asked whether he had been subjected to any abuse, Mr. A
made no such claim. When informed that the guarantees issued by the Egyptian
authorities precluded his sentence to death or execution, he was visibly
relieved.
4.9 On 10 February 2002, the Swedish national radio reported on a visit by
one of its correspondents with Mr. A in the office of a senior official at
Tora prison. He was dressed in dark-blue jacket and trousers, and showed no
external signs of physical abuse. He did have some problems moving around,
which he ascribed to a long-term back problem. He complained about not being
allowed to read and about lack of a radio, as well as lack of permission to
exercise.
4.10 On 7 March 2002, the Swedish Ambassador again visited Mr. A in Tora
prison. He showed no signs of having been subjected to torture. He explained
that his back problems had been bothering him considerably, and that he had
been provided medication for this and a gastric ulcer condition. He had
recently put in a request for transfer to a hospital ward in order to
receive better medical treatment and hoped this would be granted. At the
Ambassador's request, he removed his shirt and undershirt and turned around,
showing no signs of torture.
4.11 As to the application of the Convention, the State party refers to the
Committee's constant jurisprudence that an individual must show a
foreseeable, real and personal risk of torture. Such a risk must rise beyond
mere theory or suspicion, but does not have to be highly probable. In
assessing such a risk, which standard is incorporated in Swedish law, the
guarantees issued by the Egyptian government are of great importance. The
State party, in the absence of Committee jurisprudence on the effect of such
assurances, refers to relevant decisions of the European organs under the
European Convention on Human Rights.
4.12 In Aylor-Davis v France (judgment of 20 January 1994), it was held that
guarantees from the receiving country, the United States, were found to
eliminate the risk of the applicant being sentenced to death. The death
penalty could only be imposed if it was actually sought by the State
prosecutor. By contrast, in Chahal v United Kingdom (judgment of 15 November
1996), the Court was not persuaded that assurances from the Indian
government that a Sikh separatist that he "would enjoy the same legal
protection as any other Indian citizen, and that he would have no reason to
expect mistreatment of any kind at the hands of the Indian authorities"
would provide an adequate guarantee of safety. While not doubting the Indian
government's good faith, it appeared to the Court that despite the efforts
of inter alia the Indian government and courts to bring about reform,
violations of human rights by members of the security forces in Punjab and
elsewhere in India was a recalcitrant and enduring problem. The caselaw thus
suggests that guarantees may be accepted where the authorities of the
receiving State can be assumed to have control of the situation.
4.13 Applying this test, the current case is more in line with Aylor-Davis.
The guarantees were issued by a senior representative of the Egyptian
government. The State party points out that if assurances are to have
effect, they must be issued by someone who can be expected to be able to
ensure their effectiveness, as, in the State party's view, was presently the
case in light of the representative's position. In addition, at the December
meeting between the Swedish state secretary and the Egyptian official, it
was made clear to the latter what was at stake for Sweden: as article 3 is
of absolute character, the need for effective guarantees was explained at
length. The state secretary reaffirmed the importance for Sweden to abide by
its international obligations, including the Convention, and that as a
result specific conditions would have to be fulfilled in order to make any
expulsion possible. It was thus necessary to obtain written guarantees of
fair trial, that he would not be subjected to torture or other inhuman
treatment, and that he would not be sentenced to death or executed. The
trial would be monitored by the Swedish embassy in Cairo and it should be
possible to visit Mr. A regularly, even after conviction. Moreover, his
family could not be subjected to any kind of harassment. It was made clear
that Sweden found itself in a difficult position, and that Egypt's failure
to honour the guarantees would impact strongly on other European cases in
the future.
4.14 The State party expands on the details of these guarantees. The details
have been omitted from the text of the decision by the request of the State
party, and with the consent of the Committee. The State party points out
that the guarantees in question are considerably stronger than those
provided in Chahal and are couched much more affirmatively, in positive
terms. The State party also observes that Egypt is a State party to the
Convention, has a constitutional prohibition on torture and acts of, or
orders to torture, are serious felonies under Egyptian criminal law.
4.15 The State party observes that the complainant fears being subjected to
treatment contrary to the Convention as a result of being Mr. A's wife. She
makes no independent claim of political activity, or of detention or
mistreatment in Egypt. In this light and in view of the assurances, it was
thus determined that she did not qualify for refugee status. However in the
light of her close association with Mr. A and the general situation in
Egypt, she may be considered in need of the protection extended to her by
means of the guarantees obtained. In evaluating the prospects of respect for
these guarantees, it is naturally of interest to know the extent of respect
for the corresponding guarantee with respect to Mr. A, and, in the light of
the experiences monitored with Mr. A, it may be assumed that the guarantees
will also be effective with respect to the complainant. The State party
points out, in this respect, that the cases of Mr. A and the complainant
have garnered wide attention internationally as well as in Sweden. The
Egyptian authorities, being aware of this, must be taken to be sufficiently
astute to ensure no ill-treatment would befall the complainant.
4.16 The State party concludes that its efforts in this case fully satisfy
its international human rights obligations, including under the Convention,
while complying with its commitments under Security Council Resolution 1373.
The complainant has not shown, in the circumstances, substantial grounds to
fear torture in the event of a return, and thus her expulsion would not be
in violation of the Convention.
The Complainant's Comments on the State Party's Submissions
5.1 By letter of 20 January 2003, the complainant responded to the State
party's submissions. She affirms that Mr. A was not involved in any
terrorist activities, and this Resolution 1373 is not applicable. In any
event it could not override other international obligations such as the
Convention. In Pakistan, he was engaged by the Kuwaiti Red Crescent for
humanitarian missions, while in Iran he studied Islamic subjects at
university in order to receive a scholarship and thus support his family.
She goes on to dispute aspects of the information supplied by the Swedish
Special Branch concerning Mr. A's alleged activities.
5.2 According to the complainant, the report of the Special Branch did not
prove that he was involved in terrorist activities. In any case, there was
no information that he had performed any such acts in Sweden. The report was
not provided to their counsel, as everything but the opening sentence and
the conclusion that he was a threat to national security had been blacked
out, and it was thus very difficult to refute the conclusions. Similarly,
the decision of 18 December 2001 denying the claim for asylum and ordering
expulsion, a decision that was executed with respect to Mr. A the same day
and only reached the complainant the following day, did not detail the
Special Branch's information.
5.3 As to the assurances provided by the Egyptian authorities, the
complainant contends they are not sufficiently explicit, and it is unknown
how extensive efforts were on the Egyptian side to guarantee implementation
of the assurances, particularly given that they were provided a day after
being requested. The complainant points out that the Swedish side did not
require either any plans from the Egyptian authorities as to the manner of
treatment during and after arrival or any assurance of an ability to visit
for inspections regularly. As to the constitutional and legislative
prohibitions on torture, the complainant observes that the practical reality
is that torture is frequently resorted to by the security agencies.
5.4 As to the radio interviewer's visit with Mr. A, the interviewer notified
counsel for the complainant that he had asked Mr. A whether he had been
tortured, and he stated that he was unable to answer. In counsel's view, it
is thus plausible to assume that he had been, and that he was able to so
signal to the interviewer whereas he felt he could not to the Ambassador. In
addition, Mr. A's counsel in Egypt is allegedly of the view he has been
tortured.
5.5 The complainant disputes the State party's view of the jurisprudence of
the European organs. She views her case as closer to that in Chahal, where
the guarantees offered by India were not considered adequate. India, in
contrast to Egypt, is a democratic State, with an effective judicial system.
The security apparatus is generally controlled, and the fear of torture was
confined to Punjab, a small area. By contrast, torture is widespread in
Egypt and practiced by many agencies, particularly the security services. If
the Indian guarantee was not inadequate, a fortiori the Egyptian one cannot
be. Moreover, in the complainant's view, the position and responsibilities
of the representative providing the assurances reduces the effectiveness of
the assurance given. The complainant also considers the assurance provided
by the Egyptian government to be comparable to, rather than stronger than,
the one at issue in Chahal.
5.6 As to the prophylactic effect of publicity, the complainant argues that
despite extensive publicity Mr. A's situation does not appear to have been
relieved, and in any event it is unclear for how long such an effect would
last. Thus, little store can be placed upon this factor by way of protection
for the complainant.
5.7 The complainant concludes that the Egyptian guarantee is inadequate and
insufficient, in the light of Mr. A's experience and the monitoring to which
he is subject, as well as the realities of the practice of the Egyptian
security services. It cannot displace substantial grounds to believe that
she, as the wife of an alleged terrorist, would be at risk of torture in
Egypt in order to obtain information concerning, or to coerce, Mr. A.
Supplementary Submissions of the Parties
6.1 By additional submissions of 27 September 2002, the State party updated
the Committee on the situation of Mr. A. Subsequent to the visits described
above, the Swedish embassy in Egypt continues to visit him once a month, in
principle, with further visits taking place on 14 April, 27 May, 24 June, 22
July, and 9 September 2002. For the third visit in April, he was properly
dressed and appeared to feel well considering the circumstances. He had no
problems moving around and did not seem to have lost weight. When asked
whether the Egyptian authorities had reneged on their agreement and
maltreated him, he was initially evasive, claiming that the only problem was
the lack of information regarding his re-trial. When again asked as to his
treatment, he answered he had not been physically abused or otherwise
maltreated. His only complaint was about sleeping problems from his bad
back. A doctor had seen him the previous day and promised a through
examination. When finally asked whether the friendly atmosphere during the
visit was a sign he was alright and being treated well, he nodded
affirmatively.
6.2 During the fourth visit in May with the Swedish Ambassador, the general
circumstances surrounding the visit were similar to those of the previous
one; he looked well and healthy. He told embassy staff that he had had a
kidney infection and received treatment. His back problems had allegedly
improved and he had been promised an X-ray examination. He complained about
general prison conditions, such as the absence of proper beds or toilets in
the cell. Family members would soon be able to visit him.
6.3 During the fifth visit in June, again by the Ambassador, Mr A. appeared
to be feeling well and was able to move without problems. He did not seem to
have lost weight. No new information was provided concerning his state of
health. He again mentioned his back problems and that he had been promised
medical attention. Family members had visited the previous day and a routine
of fortnightly visits from family and counsel had been established. He was
aware of the Embassy's tasks and appeared to welcome the visits. He knew
what the Embassy wished to be informed of and he gave straightforward
answers to the Ambasssador's questions. Upon leaving, he was observed in
seemingly relaxed conversation with two prison guards.
6.4 During the sixth visit in July, by the Ambassador, Mr. A looked well and
was dressed cleanly and had no problems of movement. The atmosphere was
relaxed, with prison conditions allegedly the same as previously. Nothing
new transpired regarding his health and treatment. He stated that he was not
badly treated, and a family visit was expected later in the day. The seventh
visit, in September, also with the Ambassador, was again relaxed. Mr. A's
state of health was unchanged, having received an X-ray examination early in
the month and awaiting results. The conditions of detention were unchanged.
He was able to receive family visits fortnightly. He had been questioned a
month previously, but had not heard further news as to his re-trial.
7.1 On 22 October 2002, the complainant responded to the State party's
supplementary submissions. On 23 January 2002, her parents-in-law had
visited Mr. A at Tora prison, with an Egyptian lawyer. Her mother-in-law
alleges that he walked with difficulty and was supported by a prison
officer. He seemed pale, weak, seemingly in shock and near breakdown. His
eyes, cheeks and feet were allegedly swollen, with his nose larger than
usual and bloodied. He told that he had been tied and hung upside down while
transported to the prison, and then being constantly blindfolded and
subjected to advanced methods of interrogation, including electric shocks.
He said he was told the guarantees provided to the Swedish government were
worthless. This visit was then allegedly interrupted by the arrival of the
Swedish Ambassador.
7.2 Mr. A's parents made these observations public. They pursued efforts to
meet with him to no avail, and were informed that this depended on their
behaviour. On April 16, at short notice, they again visited him in prison.
He allegedly whispered to his mother that he had been further tortured by
electric shocks after the January visit, and held in solitary confinement
for about ten days. His arms and legs were tied behind his back and he could
not relieve himself. He said he had told the Swedish Ambassador about the
torture, and that prison officers had urged him to decline further visits
from the Ambassador. He stated that officers had told him his wife would be
returned soon, and they threatened to assault her and his mother sexually.
He said he remained in solitary confinement, in a cell measuring two square
meters, without windows, heat or light and that, while not tied, he could
only visit the toilet once every 24 hours, which caused him kidney problems.
7.3 From April, the parents were able to make monthly visits, and from July
fortnightly, in a location different from where the Swedish Ambassador met
Mr. A. Often, further visits were declined for various reasons. Officials
had allegedly urged the parents not to disclose publicly information about
Mr. A, and to encourage the complainant to return. The parents allegedly
cannot provide further information for fear of adverse effects on Mr. A.
7.4 While conceding that there are contradictions between the State party's
accounts of the visits with those of the parents, the complainant points out
there are some commonalities, for example in detention conditions and
certain evasiveness in Mr. A's replies. Necessarily, diplomatic contacts are
formal, and Mr. A would be reluctant to disclose elements within earshot of
supervising officers which could reflect negatively on him. Rather,
international standards in such situations require private and unsupervised
contact with a prisoner, and qualified medical staff must be able to examine
a prisoner suspected of torture. Failure to comply with such standards
reduces the value of the State party's observations. According to the
complainant, the State party's diplomatic representatives are not medically
trained to determine signs of torture, and may skew their interpretations in
favour of their Government. By contrast, parents and family are much more
familiar with their son's manners and he can whisper to them out of earshot
of officials. As to the visit of the Swedish radio correspondent, he was
only able to see Mr. A's face and hands. In any event, he complained of back
pains and walked with difficulty, providing no comment to a direct question
whether he had faced torture.
7.5 As a result, the complainant argues that the State party has not
discharged its burden of proof of showing Mr. A has not been tortured.
Plainly, the interests of the State security agencies in obtaining
information, if necessary by torture, outweigh broader foreign policy
interests to abide by their international assurances. As Mr. A remains under
investigation in these circumstances, allegedly for attacks on the Egyptian
Embassy in Islamabad, Pakistan, in 1995 and on a tourist bus in Luxor,
Egypt, in 1997, it is said to be likely that she will be detained,
interrogated and tortured to obtain information from her or to induce her
husband to co-operate with the investigators.
8.1 On 29 January 2003, the complainant supplied a briefing note dated
January 2003 from Amnesty International, in which it expressed the view that
the complainant would be at risk of torture in the event of being returned,
and that the guarantees provided were not effective. Amnesty International
also refers to other relatives of political prisoners who had been allegedly
detained and subjected to ill-treatment. The complainant also refers to
advice obtained from Thomas Hammarberg, Secretary-General of the Olof Palme
International Centre, who was of the personal view that the monitoring of
Mr. A's situation had been problematic.
9.1 On 26 March 2003, the State party updated on its contacts with Mr. A
since its previous submission. Since the visit in September 2002, the
Swedish Embassy continued to monitor his condition, visiting him in November
2002, January 2003, and March 2003. At the eighth visit, on 4 November 2002
with the Ambassador and other officials, Mr. A had no problems moving around
and gave a healthy impression, informing that his back had been examined
that morning. He was scheduled to be later examined by a specialist. In his
own view, opportunities to obtain medical attention had improved as a result
of the Embassy visits. He confirmed he had not been subjected to physical
abuse, complaining that, as a convicted person, he was held in a part of the
prison for unconvicted persons. He had not received information about his
retrial. In the Ambassador's assessment of the meeting, he concluded there
was no indication that the Egyptian authorities had breached their
agreement, while the detention was admittedly mentally trying.
9.2 The ninth visit, by the Ambassador and staff, took place on 19 January
2003. Mr. A appeared well, and had observed Ramadan to the extent possible.
Since December, he was no longer kept apart from other prisoners. Prisoners
were able to move around rather freely during the days, being locked up
overnight between 4pm and 8 am. He appreciated the ability to walk in the
prison courtyard. While the cell was crowded at night, the situation had
generally improved. Further back examinations had been scheduled at the
prison hospital. No further information had been provided on his retrial,
and his lawyer had only visited him once. His family however visited every
two weeks. The Ambassador's assessment was that he was more open and
relaxed. Uncertainty regarding a future re-trial and sentencing appeared to
weigh most heavily upon him.
9.3 The tenth visit, this time by a senior official from the Ministry of
Foreign Affairs, Stockholm, as well as the Ambassador and Embassy staff,
took place on 5 March 2003 and lasted over an hour in a relaxed atmosphere.
The prison superintendent informed the visitors that Mr. A was detained in
that section of the prison for convicted persons serving sentences of 3 to
25 years. Mr. A seemed glad to be visited again. He looked well and appeared
to be able to move without problems. He said he had been moved in January
2003 as a result of his health problems, and had had an MRI examination of
his back. As a trained pharmacist, he could administer his own medication.
He said he was treated as other prisoners. As far as legal representation
was concerned, he had changed to a new lawyer, who aimed to have his
sentence reduced.
9.4 The State party goes on to detail certain allegations made by Mr. A, the
actions it took by way of response thereto and invites the Committee to draw
a variety of inferences from the circumstances described. At the request of
the State party and with the Committee's agreement, details of these matters
have been deleted from the text of the present decision.
9.5 In the context of the case, the State party draws the Committee's
attention to the interim report B [FN2] submitted in July 2002 by the
Special Rapporteur of the Commission on Human Rights on the question of
torture and other cruel, inhuman or degrading treatment or punishment,
submitted in accordance with resolution 56/143 of 19 December 2001. In that
report, the Special Rapporteur appealed to all States "to ensure that in all
appropriate circumstances the persons they intend to extradite, under
terrorist or other charges, will not be surrendered unless the Government of
the receiving country has provided an unequivocal guarantee to the
extraditing authorities that the persons concerned will not be subjected to
torture or any other forms of ill-treatment upon return, and that a system
to monitor the treatment of the persons in question has been put into place
with a view to ensuring that they are treated with full respect for their
human dignity" (paragraph 35). The State party argues, in the light of the
information presented, that it has acted in the manner recommended by the
Special Rapporteur. Prior to the decision to expel Mr. A, guarantees were
obtained from the very person in the Egyptian administration best placed to
ensure their effectiveness. The guarantees given correspond in content to
the requirements specified by the Special Rapporteur. In addition, a
monitoring mechanism was put into place and has been functioning for over a
year.
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[FN2] A/57/173, 2 July 2002.
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9.6 The State party concludes that since the guarantees concerning Mr. A
have served their purpose, it may be assumed that the assurances for the
complainant will protect her from torture by the Egyptian authorities. Thus,
the complainant has not substantiated her claim that there are substantial
grounds for believing she would be in danger of torture if returned. An
enforcement of the expulsion order would accordingly not, in the present
circumstances, constitute a violation of article 3.
10.1 By letter of 23 April 2003, the complainant, while acknowledging the
visits that have taken place, argues that conclusions that Mr. A is being
treated well are not justified, as the monitoring was not performed in
accordance with generally accepted international standards. In particular,
the visits were not in private and no medical examinations have been
performed; thus, he would be reluctant to speak freely. Mr. A allegedly told
his mother that he had, in January 2003, realized that ill-treatment would
continue whether or not he tried to veil it, and thus he had been
forthcoming. According to the complainant, this incident also shows that the
testimony of Mr. A's parents is not exaggerated and closer reflects the real
conditions of detention. In support of these submissions, the complainant
refers to matters raised by the State party in paragraph 9.4 above.
10.2 The complainant states that no information is available as to the time
of an eventual retrial. It remains uncertain whether the allegations against
Mr. A can be proved in a court procedure affording due process guarantees.
In the complainant's view, it is not surprising that the Egyptian officials
denied torture. However in the complainant's view,it is difficult to
understand why a lie detector was used if evidence obtained by it cannot be
admitted in court. While the State party refers to medical examinations that
have taken place, they have not been provided, and their objectivity would
have to be questioned.
10.3 In terms of the reference to the Special Rapporteur's call for
"unequivocal guarantees", the complainant argues that the information on
ill-treatment provided demonstrates that the guarantees have not been
adequate, as called for by the Special Rapporteur. Thus, the complainant,
who is closely linked to her husband, followed his activities in exile and
will be inevitably associated with his activities, is at a high and
well-founded risk of torture. Her removal to Egypt would thus violate
article 3 of the Convention.
Issues and Proceedings Before the Committee
11.1 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. In terms of the State party's
argument that the complaint is insufficiently substantiated, for purposes of
admissibility, the Committee considers that the complainant has demonstrated
a sufficiently arguable case for determination on the merits. In the absence
of any further obstacles to the admissibility of the complaint advanced by
the State party, the Committee accordingly proceeds with the consideration
of the merits.
12.1 The issue before the Committee is whether removal of the complainant to
Egypt would violate the State party's obligation 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 or she would be in danger of
being subjected by the Egyptian authorities to torture. In so doing, the
Committee refers to its consistent practice of deciding this question as
presented at the time of its consideration of the complaint, rather than as
presented at the time of submission of the complaint. [FN3] It follows that
intervening events transpiring between submission of a complainant and its
consideration by the Committee may be of material relevance for the
Committee's determination of any issue arising under article 3.
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[FN3] See, for example, H M H I v Australia Case No 177/2001, Decision
adopted on 1 May 2002.
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12.2 The Committee must evaluate whether there are substantial grounds for
believing that the complainant would be personally in danger of being
subjected to torture upon return to Egypt. It follows from this framing at
the issue that the Committee is not asked to decide whether or not Mr. A's
expulsion from Sweden violated its obligations under article 3, or any other
articles of the Convention, much less whether he has or has not endured
torture at the hands of the Egyptian authorities. In assessing the risk to
the complainant, the Committee must take into account all relevant
considerations, pursuant to article 3, paragraph 2, of the Convention,
including the existence of a consistent pattern of gross, flagrant or mass
violations of human rights. However, the Committee recalls that the aim of
the determination is to establish whether the individual concerned would be
personally at risk of being subjected to torture in the country to which he
would be returned. 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 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.
12.3 In the present case, the Committee observes that the complainant's
husband, Mr. A, was returned to Egypt in December 2001, almost two years
prior to the Committee's consideration of the case. The Committee observes
that Mr. A's detention has since been monitored by regular visits from the
State party's ambassador, Embassy staff and high-level representatives of
the State party, as well as his family, and that his medical care and
conditions of detention were reported to be adequate. The Committee observes
that the complainant founds her allegation of a risk of torture solely on
her relationship with her husband, Mr. A, and contends that she will be
exposed to torture as a result of this link. The Committee refers in this
respect to its previous jurisprudence where it rejected a claim of torture
arising by virtue of a family relationship to the leadership of an allegedly
terrorist organization � such family ties, of themselves, are generally
insufficient to ground a claim under article 3. [FN4] In light of the
passage of time, the Committee is also satisfied by the provision of
guarantees against abusive treatment, [FN5] which also extend to the
complainant and are, at the present time, regularly monitored by the State
party's authorities in situ. It is also relevant to the Committee's
consideration of the case that Egypt, a State party to the Convention, is
directly bound properly to treat prisoners within its jurisdiction, and any
failure to do so would be a breach of the Convention. In the light of the
above circumstances, the Committee considers that there is not, at this
time, a substantial personal risk of torture of the complainant in the event
of her return to Egypt.
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[FN4] See, for example, M V v The Netherlands Case No 201/2002, Decision
adopted on 30 May 2003.
[FN5] The Committee against Torture has viewed and considered the provisions
of the guarantees provided.
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13. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, considers that the complainant has not
substantiated her claim that she would be subjected to torture upon return
to Egypt, and therefore concludes that the complainant's removal to that
country at the present time would not constitute a breach by the State party
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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