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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. 223/2002, submitted to
the Committee against Torture by S.U.A. 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 of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is S.U.A., a Bangladeshi citizen born in 1972 currently
awaiting deportation from Sweden. He claims that his expulsion to Bangladesh
would constitute a violation by Sweden of article 3 of the Convention. He is
represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the complaint to the State party on 13 December 2002.
Pursuant to rule 108, paragraph 1, of the Committee's rules of procedure,
the State party was requested not to expel the complainant to Bangladesh
pending the consideration of his case by the Committee. On 6 February 2003
the State party informed the Committee that on 13 December 2002 the Swedish
Migration Board decided to stay the enforcement of the decision to expel the
complainant to Bangladesh.
The Facts as Submitted by the Complainant
2.1 The complainant belongs to the Ershad faction of the Jatiya Party in
Bangladesh, which is not part of the present Government coalition. He claims
having participated in activities organized by the Party in Mithapur,
including meetings, demonstrations, distribution of pamphlets, construction
of roads and schools and charity work. Because of his involvement with the
Party he was kidnapped about 20 times by members of the governing Bangladesh
Nationalist Party (BNP) who kept him for periods ranging from a few hours to
one week and beat him. Those incidents were reported to the Police who took
no action.
2.2 The complainant was reportedly arrested by Bangladeshi police on three
occasions and taken to the Madariapur police station, where he was tortured.
He was exposed, inter alia, to beatings, rape attempts, electric shocks,
cigarette burns, beatings on the soles of the feet, was hanged from the
ceiling and forced to drink dirty water. On one occasion he was accused of
unspecified crimes and on the other two he was accused, respectively, of
murder and violence in the course of a demonstration. He denies the facts of
which he was accused and claims that the purpose of the arrests was to bring
his political activities to an end. Counsel states that, because of his
mental condition, the complainant cannot recall the exact dates but it seems
that such arrests took place in August 1996 and November 1998. The
complainant also claims to have been convicted for attempted murder and
sentenced to eight years' imprisonment.
2.3 Copies of the medical reports issued by three Swedish doctors in 2001
are attached to the complaint. They indicate that the complainant suffers
from post-traumatic stress disorder, that the scars on his body are
consistent with the acts of torture that he described and that he requires
medical treatment.
2.4 The complainant argues that he has exhausted domestic remedies. His
asylum application was rejected by the Swedish Migration Board on 21
February 2001 and his appeal of that decision was rejected by the Aliens
Appeals Board on 3 June 2002.
The Complaint
3.1 The complainant claims that he will be tortured again if he is returned
to Bangladesh. In support of his claim he refers, inter alia, to NGO reports
indicating that the use of torture by the police in Bangladesh is common.
State Party's Submissions on the Admissibility and Merits of the Complaint
4.1 On 29 April 2003 the State party submitted its observations on the
admissibility and merits of the complaint. It indicates that the complainant
entered Sweden on 23 March 1999 using a forged passport which contained a
forged certificate of permanent residence in Sweden. On the same day he
applied for asylum and presented a genuine passport to the Swedish
authorities.
4.2 The Migration Board interviewed the complainant on the same day. He
stated, inter alia, that he started working for the Jatiya Party upon
finishing his education in 1994. He also stated that he had been involved
with the Party since 1983, when he was still at school. His activities
consisted of organizing and speaking at party meetings and distributing
leaflets. Four or five years ago he had been accused of murder by members of
the BNP and the Awami League and arrested by the police. He remained in
custody for some 15 or 20 days before being released on bail and was
acquitted at the trial. Other false allegations had been made against him.
He had also been arrested by the police on several occasions, each of them
for a short time.
4.3 A second interview was held by the Migration Board on 20 December 2000
in the presence of the complainant's legal counsel. He stated that he was
suffering from ill health and had to consult a physician. He was feeling
constantly tense and nervous, had sleeping difficulties, poor appetite, loss
of memory and nightmares. He also made a number of varying and contradictory
statements concerning inter alia his alleged experience of different types
of mistreatment by the members of the BNP on the one hand and the police on
the other hand; the dates and length of the detention periods; the date when
he started working for the Jatiya Party and his activities in the Party.
4.4 On 30 January 2001 the complainant's counsel filed written observations
with the Migration Board in which he submitted inter alia that the
complainant had been held at the police station in Madariapur and tortured
on three different occasions. Furthermore, on numerous occasions he had been
kidnapped and subjected to beatings with sticks and fists by supporters of
the BNP which had resulted in serious damage to his elbow. The complainant
had further been physically abused also by supporters of the Awami League.
Both the complainant and his Party had reported these incidents to the
police which had taken no action.
4.5 On 21 February 2001, the Migration Board rejected the application for
asylum and ordered the complainant expulsion to Bangladesh. Noting that the
information provided by the complainant at the two hearings and the
subsequent written observations differed inter se, and that he had changed
his statements during the second interview, the Board held that the
complainant had not been able to provide a credible account of his situation
in Bangladesh or his political activity in the Jatiya Party. Referring to a
number of inconsistencies and peculiarities in his statements, the Board
concluded that the complainant had not made it probable that he was of
interest to the BNP, other political parties or the authorities in
Bangladesh. The Board further observed that the complainant's alleged
political activities, irrespective of his lack of credibility, were legal
under Bangladeshi law and that the kidnappings and beatings to which he had
been exposed by political opponents was not something which was sanctioned
by the Bangladeshi authorities. While noting that persons held in detention
in Bangladesh were often subjected to mistreatment by police personnel, the
Board expressed its view that this was not an abuse that was sanctioned by
the Bangladeshi authorities.
4.6 On 27 February 2001 the complainant lodged an appeal with the Aliens
Appeals Board. He stated that a case in which he and three other persons
were charged with murder of a BNP supporter was pending before the Faridpur
Court and submitted some "court documents" regarding the case, together with
a letter from the lawyer who was said to represent him in the case. The
complainant subsequently declared having been informed by his lawyer that he
had been sentenced to eight years' imprisonment for attempted murder. He
also submitted several medical certificates and records and a copy of what
was purported to be a certificate issued by a Mr. Khan, a Member of
Parliament in Bangladesh and member of the central committee of the Jatiya
Party, indicating that he had been tortured and needed protection.
4.7 On 3 June 2002 the Board rejected the appeal. It held that the material
before it did not support that the complainant was to be considered a
refugee, nor that there was a risk that he would be exposed to inhuman or
degrading treatment in accordance with the Aliens Act. It further concluded
that there were no grounds for granting him a residence permit for
humanitarian reasons. In September 2002, the complainant filed a new
application with the Aliens Appeals Board in which he asserted that an
enforcement of the expulsion order would be contrary to the requirements of
humanity. This new application was rejected on 15 October 2002.
4.8 The State party indicates that it is not aware of the same matter having
been examined under another procedure of international investigation or
settlement and that all available domestic remedies have been exhausted. It
maintains, however, that the complaint should be considered inadmissible in
accordance with article 22, paragraph 2 of the Convention, as it lacks the
minimum substantiation that would render it compatible with article 22.
4.9 On the merits, the State party refers to the human rights situation in
Bangladesh. It stated that, while remaining problematic, the situation had
improved. Following the introduction of democratic changes in the early
1990's, no systematic repression of dissidents has been reported and a wide
variety of human rights groups were generally permitted to conduct their
activities. However, violence has been a pervasive element in the country's
politics and supporters of different parties frequently clash with each
other during rallies and demonstrations. The police reportedly use physical
and psychological torture during arrest and interrogation and the
perpetrators are rarely punished. The police is also said to be reluctant to
pursue investigations against people affiliated with the ruling party, and
the Government frequently uses the police for political purposes. Arbitrary
arrests are common and lower level courts are considered to be susceptible
to pressures from the Executive. The higher levels of the Judiciary,
however, display a significant degree of independence and often rule against
the Government in criminal, civil and even politically controversial cases.
While high profile individuals could be arrested and harassed by the police,
persecution for political reasons is of rare occurrence at the grass-root
level. Court cases based on false accusations are common, but were primarily
directed towards senior party officials. Individuals active in politics at
the grass-root level can avoid harassment by relocating within the country.
4.10 The State party contends that the Swedish authorities apply the same
kind of test when considering an application for asylum under the Aliens Act
as the Committee will do when examining a complaint under the Convention. In
its decision of 3 June 2002 the Aliens Appeals Board concluded that the
evidentiary standard to be applied by it in deciding the complainant's
appeal under the Aliens Act corresponded to that established by the
Committee under article 3 of the Convention.
4.11 Between 1990 and 2000, 1427 requests for asylum were filed by
Bangladesh citizens in Sweden. Residence permits were granted in 629 cases,
inter alia on the ground that the applicant was in need of protection having
regard to the risk of torture and other ill-treatment in the event of
expulsion. The Swedish authorities have therefore significant experience in
assessing claims from asylum seekers from Bangladesh, and considerable
weight must be attached to their opinions.
4.12 The State party draws the Committee's attention to the contradictory
nature of the statements made by the complainant during the interview and
those subsequently made by counsel on his behalf. It questions whether the
latter may be considered to represent an accurate description of the account
provided by the complainant during the interview. In any event, there can be
no doubt that it is the statements made directly by the complainant to the
officers of the Migration Board during the two interviews that offer the
best material by which to determine the veracity of his claims.
4.13 The State party observes that in the two interviews, the complainant
provided contradictory information about two central elements of his
account: (i) the identity of the political group(s) responsible for the
alleged false murder allegation made against him, [FN1] and (ii) whether the
allegation made against him and resulting in his arrest and torture occurred
quite shortly before his departure or, alternatively, four to five years
earlier. Moreover, statements made by the complainant on these matters in
the course of the second interview, as well as his different statements
during this interview on the number of arrests and detentions to which he
claimed to have been subjected, were difficult to reconcile with the
information contained in the supplementary written observations submitted
later by counsel on his behalf. While the Committee in its case law has
emphasized that complete accuracy cannot be expected from victims of
torture, the contradictions contained in the complainant's statements to the
Swedish authorities are of a nature to raise serious doubts as to the
general credibility of his claims.
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[FN1] During the first interview the complainant stated that he had been
arrested by the police after being falsely accused of murder by � two or
three opposition parties �, specifically the BNP and the Awami League. In
the second interview he stated that he had never had any difficulty with the
Awami League and that supporters of the BNP had made a false charge against
him.
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4.14 It should also be observed that, during the first interview, the
complainant made no mention of ever having been subjected to deprivations of
liberty by supporters of the BNP, nor of having been subjected to torture by
the police or the BNP. Furthermore, whereas he stated, during the second
interview, that he never reported the harassment to the police as he knew
that he would receive no assistance from them, counsel's subsequent
submissions indicate that both the complainant and the Jatiya party reported
the incidents to the police but that no action was taken against those
involved. Repeatedly asked about his activities in support of the party, the
complainant only at the very end of the first interview stated that the
reason why he was a subject of interest to the supporters of the BNP was
that he had been in charge of activities such as building roads in his
community, a role very different from his other alleged tasks (preparing
party meetings, handing out leaflets etc.). However, when asked, he was
unable to recall the date when he first undertook this task. Furthermore,
the complainant's marital status remains uncertain, as the information he
provided contains clear discrepancies.
4.15 The State party acknowledges that the complainant has been diagnosed as
suffering from post traumatic stress disorder. However, the medical evidence
he provided does not demonstrate that his mental condition at the time of
the second interview was such that it may explain the unclear and
contradictory nature of his statements in respect of central aspects of his
detention and torture. A distinction must be made between the complainant's
medical condition at the time of the second interview and his physical and
mental condition as reported in the subsequent medical certificates provided
to the national authorities and the Committee. While at the time of the
second interview he complained that he was feeling unwell, the
above-mentioned certificates indicate that his medical condition during 2001
deteriorated progressively. Such certificates, dated August, September and
October 2001 and August 2002, cannot be regarded as indicative of his
medical condition at the time of the second interview. Furthermore, it does
not appear from the certificates that the complainant, during his
examination, made any reference to physical abuse at the hands of BNP
supporters, but mentioned simply having been tortured twice by the police.
4.16 Regarding the complainant's allegations that there was an ongoing case
against him for murder, the Swedish Embassy in Dhaka engaged a reliable
lawyer to look into the matter. This lawyer examined the documents in
Bengali submitted by the complainant and made inquiries with the Madaripur
Magistrate Court. On verifying the Court's records, it was found that the
case numbers indicated in the above documents referred to three different
sets of proceedings concerning different accused individuals and different
sections of the Penal Code. In none of the cases there was any accused with
the complainant's name.
4.17 On two occasions the complainant submitted what purported to be copies
of certificates issued by a Mr. Sahajahan Khan, Member of Parliament in
Bangladesh and member of the central committee of the Jatiya Party.
Following inquiries by the Swedish Embassy in Dhaka it was found that there
is no Member of Parliament for the Jatiya Party by that name. There is a
Member of Parliament for the Awami League named Shajahan Khan who is active
in the Madaripur District.
4.18 The State party also states that the information provided by the
complainant about his marital status is unclear. During the first interview
with the Swedish Immigration Board he asserted that he was not married.
However, a separate case was pending before the Aliens Appeals Board
concerning a Bangladeshi woman who had arrived in Sweden in September 2002
and applied for asylum. Before the Migration Board, she claimed that her
husband had disappeared three and a half years earlier and that she did not
know where he was. She later stated, before the Aliens Appeal Board, having
learned that her husband was residing in Sweden. In subsequent submissions
to the Board her counsel stated that she was married to the complainant and
offered to submit documentary evidence. To the State party's knowledge, no
such evidence has yet been provided.
4.19 In view of the conclusions that may be drawn about the complainant's
general credibility, the State party contends that while the medical
evidence adduced may indicate that he at some point in time was subjected to
severe physical abuse, great caution must be exercised in affording it
probative value regarding the identity of the perpetrators. A possible risk
of being subjected to ill-treatment by a non-governmental entity or by
private individuals, without the consent or acquiescence of the Government
of the receiving country, falls outside the scope of article 3 of the
Convention.
4.20 Given the limited nature of the complainant's alleged political
activities and the length of time that passed from the alleged instances of
torture and from his departure from the country, the State party questions
whether the complainant today would be a political figure of such importance
to his former political opponents that there can be substantial grounds for
believing that he would be in danger of being subjected to persecution,
either directly by supporters of the BNP or any other party or indirectly by
the exercise of influence upon the police. Should such risk exist it would,
in view of the complainant's purely local political role, be of a local
character and he could therefore secure his safety by moving within the
country.
4.21 In view of the complainant's submissions, the State party contends that
he has not substantiated his claim and that there are no substantial grounds
for holding that his expulsion would constitute a violation of article 3 of
the Convention. Furthermore, the claim lacks the substantiation that is
necessary in order to render the complaint compatible with article 22, and
should therefore be declared inadmissible.
Comments by Counsel
5.1 By submissions of 3 July 2003, 9 October 2003 and 23 April 2004, counsel
contends that because of his psychiatric problems, the complainant sometimes
gave different answers to the same questions and that such problems are the
result of the torture to which he was subjected. He also argues that the
complaint meets the admissibility requirements and recalls that torture is
routinely practiced in Bangladesh, as documented in well known NGO reports.
He provides copy of a medical certificate issued on 8 May 2003 indicating
that the complainant suffers from post-traumatic stress disorder, depression
and has suicidal tendencies. Counsel further alleges that the complainant's
wife also suffers from the same disorder and that she was subjected to
torture in Bangladesh because of the complainant's political activities.
5.2 Regarding the documents provided by the complainant in support of his
claim that there was an ongoing case against him before the Madaripur
Magistrate Court, the complainant still believes they are authentic. If they
are not, he himself was a victim of fraud.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a complaint, the Committee
against Torture must decide whether or not the complaint is admissible under
article 22 of the Convention. In the present case 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, and
that domestic remedies have been exhausted, as acknowledged by the State
Party. Furthermore, it notes the State Party's statement that the complaint
should be declared inadmissible for lack of substantiation. The Committee
considers, however, that the State Party's arguments raise only substantive
issues which should be dealt with at the merits and not the admissibility
stage. Since the Committee sees no further obstacles to admissibility, it
declares the communication admissible and proceeds with the consideration of
the merits.
6.2 The issue before the Committee is whether the removal of the complainant
to Bangladesh would violate the State Party's obligation under article 3 of
the Convention not to expel or return 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.
6.3 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 Bangladesh. In assessing the risk 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 in
the return country. However, the Committee recalls its constant
jurisprudence that the aim of such 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 return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights on a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his or her return to that country; additional
grounds must exist to show that the individual concerned would be personally
at risk. Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to be in
danger of being subjected to torture in his or her specific circumstances.
Furthermore, the risk of torture must be assessed on grounds that go beyond
mere theory or suspicion but it does not have to meet the test of being
highly probable.
6.4 The Committee has noted the medical reports certifying that the
complainant suffers from post-traumatic stress disorder, as well as the
doctors' assessment that the scars in his body are consistent with the acts
of torture described by the complainant. It also notes the State party's
doubts as to the identity of the perpetrators of such acts as well as the
reports about the use of torture in Bangladesh and the frequent incidents of
violence between supporters of different political parties.
6.5 Nevertheless, the complainant's account of his experiences to the
Swedish authorities contained contradictions and lacked clarity on issues
that are relevant to assess his claim. The Swedish authorities made
conclusions about the complainant's credibility which, in the Committee's
view, were reasonable and by no reckoning arbitrary.
6.6 The Committee finds that the information submitted by the complainant,
including the local and low level nature of his political activities in
Bangladesh, does not contain evidence to support the claim that he will run
a substantial risk of being subjected to torture if he returns to
Bangladesh.
7. In the light of the above, the Committee against Torture, acting under
article 22, paragraph 7 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, concludes that the decision of
the State Party to return the complainant to Bangladesh would not constitute
a breach of article 3 of the Convention.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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