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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 22 November 2004,
Having concluded its consideration of complaint No. 218/2002, submitted to
the Committee against Torture by Mr. Luis Jacinto Rocha Chorlango 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, her counsel and the State party,
Adopts the following:
Decision of The Committee Against Torture Under Article 22 of the Convention
1. The complainant is Luis Jacinto Rocha Chorlango, an Ecuadorian citizen,
born in 1977, currently facing deportation from Sweden to Ecuador. He claims
that he would be at risk of being subjected to torture if returned to
Ecuador in violation of article 3 of the Convention. He is not represented
by counsel.
The Facts as Submitted by the Complainant:
2.1. The complainant performed his military service in 1997 and was a
military trainee from January until the end of May 2000. On 13 May 2000,
while he was at the military base of Cononaco, he allegedly witnessed the
torture and summary execution of two members of the guerilla group Fuerzas
Armadas Revolucionarias del Ecuador-Defensores del Pueblo (FARE-DP) by
members of the intelligence service of the Ecuadorian army. After this
incident, he began to receive threats from members of the FARE-DP and
members of the military. He told his brother, who was also a member of the
military, about the incident. On 8 November 2000, his brother was tortured
to death in a military camp. Before his death, his brother received threats
from his supervisors. After his brother's death, he continued to be
threatened, and he was forced to move several times within Ecuador. As the
threats increased he decided to leave Ecuador. He arrived in Sweden on 23
March 2001, and applied for asylum on 27 April 2001.
2.2 On 19 June 2001, the Swedish Migration Board dismissed the complainant's
asylum application. On 2 September 2002, the Appeal Aliens Board upheld the
Migration Board's decision.
The Complaint:
3.1 The complainant alleges that he is at risk of being subjected to
torture, ill-treatment, forced disappearance or summary execution if
returned to Ecuador; his deportation in such circumstances would amount to a
violation to article 3 of the Convention.
State Party's Observations on the Admissibility and the Merits of the
Complaint
4.1 By submission of 11 December 2002, the State party acknowledged that all
domestic remedies are exhausted. Nevertheless, it argues that the complaint
is inadmissible because the complainant failed to substantiate his claim
that he would be at risk of being tortured if returned to Ecuador.
4.2. The State party recalls that the complainant had two interviews with
immigration authorities. In his first interview with the Migration Board, he
stated that on 13 May 2000, when he was at Cononaco camp as a military
trainee, he witnessed how the military tortured and murdered two members of
the FARE-DP, who had been taken prisoners together with five other members.
Two of the prisoners managed to escape and thereafter persecuted him because
they wanted him to identify who was responsible for the torture and murder
of their comrades. They also identified his brother, a soldier, telephoned
him on 8 November 2000 and then tortured and maltreated him so badly that he
died. Before passing away the complainant's brother told a colleague that it
was the complainant himself who was wanted.
4.3 In a second interview with the Migration Board, the complainant provided
a more detailed account of the above incident. He said that FARE-DP was very
active in the jungle in border areas and it tried to initiate continuous
guerilla warfare. He visited his brother on 25 May 2000 and told him of the
incident. Towards the end of June 2000, his brother began to receive
threatening phone calls. He had found out that high-ranking officers had
been involved in the incident. On 8 November 2000 his brother left his house
and was assaulted and maltreated by two strangers. He was taken to the
military hospital, where he died. His brother's wife reported the death to
the police, which was unsuccessful in investigating the incident. Members of
FARE-DP continued to phone his brother's house after his death, and the
family had to move away. The complainant added that he never informed the
police about the incident in the jungle, for fear of being killed by members
of FARE-DP. He had never been personally contacted by FARE-DP members or
received threats from them. The Board was informed by the complainant's
counsel that FARE-DP members had illegally entered the complainants' brother
house in Quito and had destroyed part of the furniture.
4.4 On 19 July 2001, the Migration Board rejected the complainant's
application for asylum and ordered that he be deported to Ecuador. It took
into account that Ecuador had been a working democracy for several years,
that the complainant remained in Ecuador almost a year after he had
witnessed the torture and homicide, that he had never personally been
persecuted or threatened by members of FARE-DP, and that he did not seek
protection from the authorities in spite of the fact that government forces
had done what they could to eliminate FARE-DP. The Board concluded that the
complainant had not substantiated his claim that he risked persecution. The
complainant appealed against the Board's decision, maintaining that he
risked being tortured and that government forces were unable to control
FARE-DP activities. He added that should the circumstances that prompted
FARE-DP's threats against him become known, his life would be at risk, but
this time through violence from government forces or the police. On 2
September 2002, the Aliens Appeals Board dismissed the appeal, endorsing the
assessment made by the Migration Board. In addition, the Board noted that
the complainant had applied for asylum more that a month after his arrival
in Sweden. Regarding his statement that he risked persecution by government
forces or the police, the Board noted that the complainant was on guard when
he witnessed the incident at Cononaco camp, and thus it could not had been
unknown to the military that he knew about the incident. For as long as the
complainant remained in Ecuador after the incident, it appeared that he had
not been of any interest to the military or the police.
4.5 As to the general human rights situation in Ecuador, the State party
notes that while according to some reports [FN1] it remains poor in many
areas, and that the police continues to torture and abuse suspects and
prisoners with impunity, there have nevertheless been other positive
improvements. Domestic and international human rights groups operate without
restriction in the country, and the government has contracted some of these
organizations to provide human rights training to the military and the
police. Ecuador ratified the Convention against Torture on 30 March 1988,
recognizing the competence of the Committee to receive and consider
individual complaints.
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[FN1] 2001 U.S Department of State Country Reports on Human Rights Practices
and 2002 Amnesty International Report.
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4.6 As to the complainant's risk of torture at the hands of members of
FARE-DP, the State party 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 torture by a non-governmental entity, without the
consent or acquiescence of the Government, falls outside of the scope of
article 3 of the Convention. It adds that it is clear that the Ecuadorian
authorities do not tolerate the activities of FARE-DP, which they regard as
criminal and link to a series of kidnapping and murder cases, [FN2] and that
there is nothing to show that the Ecuadorian authorities could not afford
the complainant adequate protection from FARE-DP.
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[FN2] According to the 2001 U.S Department of State Country Reports on Human
Rights Practices.
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4.7 As to the complainant's allegation that he is at risk of being tortured
by members of government forces, the State party notes that before Swedish
immigration authorities, the complainant only mentioned in passing that he
would risk being killed by government forces should they learn about what he
had experienced at Cononaco. However, he said nothing about having been
persecuted by Ecuadorian authorities but, on the contrary, he clearly stated
that he had never had any problems with the Ecuadorian police or other
authorities. He also stated that since he had never been accused of
anything, he had been able to receive permission to leave the country.
Furthermore, the complainant gave inconsistent information as to who
threatened and killed his brother. Before Swedish immigration authorities,
he stated that it was members of FARE-DP who threatened his brother, while
in his complaint before the Committee, he maintains that his brother's
superiors first threatened him. The State party adds that the fact that the
complainant was given permission to leave Ecuador by both the military and
the police strongly suggests that he is not wanted by the Ecuadorian
authorities. The military must also have learned that the complainant had
witnessed the incident at Cononaco; yet, he did not seem to have attracted
particular interest from the military or the police.
4.8 The State party concludes that the complainant has not substantiated his
claim that he would risk a foreseeable, real and personal risk of torture if
returned to Ecuador.
Issues and Proceedings Before the Committee
5.1 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. In this respect 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 the exhaustion of domestic remedies is not
contested by the State party.
5.2 As to the complainant's allegation that he would be in risk of being
tortured by members of FARE-DP, the Committee recalls its jurisprudence
according to which 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
Government, falls outside the scope of article 3 of the Convention, unless
the non-governmental entity occupies and exercised quasi-governmental
authority over the territory to which the complainant would be returned.
[FN3] The Committee notes that the complainant has not disputed the State's
party allegation that the Ecuadorian authorities do not tolerate FARE-DP
activities carried out in border areas of the country, which they regard as
criminal and link to a series of kidnapping and murder cases. Accordingly,
the Committee decides that this part of the communication is inadmissible
under article 22, paragraph 2, of the Convention.
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[FN3] See complaint No. 191/2001, S.S v. The Netherlands, Decision of 5 May
2003, para. 6.
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5.3 As to the complainant's allegation that he would risk torture at the
hands of government forces if returned, the Committee notes that the
information submitted by the complainant in substantiation of this claim
remains general and vague, and does not in any way reveal the existence of a
personal and foreseeable risk of torture to which he might be subjected in
the event of his return to Ecuador. The information provided to the
Committee by the complainant is at odds with his own account of the facts to
the Swedish immigration authorities. He has not provided reliable
information that he was tortured in the past nor that he had had any problem
with the police or had attracted any interest from the military or the
police while he continued to live in Ecuador, even after the events at
Cononaco camp. The Committee accordingly considers that the threshold of
admissibility has not been met in the complainant's case, and concludes that
the complaint, as formulated, does not give rise to any arguable claim under
the Convention.
5.4 The Committee finds, in accordance with article 22 of the Convention and
rule 107(b) of its revised Rules of Procedure, that the complaint is
manifestly unfounded. Accordingly, the Committee decides that the complaint
is inadmissible.
6. The Committee decides:
a) that the complaint is inadmissible; and
b) that this decision will be transmitted to the author and, for
information, to the State party.
[Adopted in English, French, Spanish and Russian, the English text being the
original version. Subsequently to be issued in Arabic and Chinese as part of
the Committee's annual report to the General Assembly.]
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