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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 3 May 2005,
Having concluded its consideration of complaint No. 222/2002, submitted by
Mr. Zubair Elahi 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
Views Under Article 22,
Paragraph 7, of the Convention
1.1 The complainant, Mr. Zubair Elahi, a Pakistani national, is currently in
Switzerland, where he applied for asylum on 27 September 1999. His
application was rejected, and he maintains that sending him back to Pakistan
would constitute a violation by Switzerland of article 3 of the Convention
against Torture. He asks the Committee to apply interim measures of
protection since, on the date he lodged his complaint, he faced imminent
deportation. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the attention of the State party on 3
December 2002. At the same time, acting pursuant to article 108, paragraph
1, of its rules of procedure, it asked the State party not to deport the
complainant to Pakistan while his complaint was under consideration. The
State party agreed to that request on 3 February 2003.
The Facts as Submitted by the Complainant
2.1 The complainant, baptised a Roman Catholic, converted to Islam in 1990
while at university under the influence of his fellow students and in order
to improve his career prospects. His conversion was not based on genuine
conviction and, conscience-riven, he reverted openly to Christianity in 1996
and had himself rebaptised by a Catholic priest.
2.2 At the University of Lahore, however, the complainant was still regarded
as a Muslim and was appointed President of the Muslim Students Federation in
1997. At the same time he was visiting Christian prisoners as a member of
the Christian "Prison Fellowship" prisoner aid association. Discovering this
in December 1998, Muslim Students Federation officials threatened to kill
him and the complainant had to leave the University. Federation officials
also pressed the police to bring criminal proceedings against the
complainant under article 295c of the Pakistani Criminal Code.
2.3 In early January 1999 the complainant was detained at a police station,
where he was ill-treated and threatened with death. He was lucky enough to
be able to escape through the lavatory window. He then went into hiding and
arranged to flee to Switzerland.
2.4 The complainant submitted an application for asylum in Switzerland on 27
September 1999. The application was rejected by the Federal Office for
Refugees by decision dated 10 January 2002. An appeal by the complainant was
also rejected, by the Swiss Asylum Review Commission, in a ruling dated 5
August 2002. In a letter dated 9 August 2002, the Federal Office for
Refugees set 4 October 2002 as the date on which he should leave
Switzerland. On 26 September 2002, the applicant lodged an application for
review with suspensive effect with the Swiss Asylum Review Commission. The
Commission found the application manifestly groundless in a decision dated
10 October 2002. It rejected the application in a ruling dated 13 November
2002. The complainant is no longer authorized to live in Switzerland and may
be expelled to Pakistan at any time.
The Complaint
3.1 The complainant asserts that he is in danger of being immediately
arrested by the police, tortured or ill-treated or even condemned to death
or summarily executed if he is deported to Pakistan.
3.2 In justification of his fear, the complainant points out that the Muslim
Students Federation has brought proceedings for blasphemy against him. He
supports this assertion with a letter from the President of the Christian
Lawyers Association (CLA) dated 17 August 2002, stating that proceedings
under article 295c of the Pakistani Criminal Code have been instituted
against Zubair Elahi and suspended for the time being owing to the absence
of the individual concerned, but that they will be immediately resumed upon
his return to Pakistan. The President of CLA also refers to three death
sentences passed on Christians under article 295c of the Pakistani Criminal
Code. The complainant draws attention, with particular reference to reports
by Amnesty International and the Asian Human Rights Commission, to the risks
that declared apostates face when they come before the Pakistani justice
system.
3.3 The complainant also submits a letter from his father dated 20 June
2002, explaining that under pressure from the Muslim Students Federation the
police have been going to his home every month to try and arrest his son
pursuant to article 295c of the Criminal Code. The letter makes it plain
that the complainant is accused of having insulted the Prophet, cast the
Koran into disrepute and spurned Islam, and can therefore expect the death
penalty.
3.4 The complainant explains that, even if he were not to be arrested, his
life and physical safety would be in danger because the police would afford
him no protection against threats from his former fellow students and
supporters of the Muslim Students Federation.
Comments by the State Party on Admissibility and the Merits
4.1 By letter dated 3 February 2003, the State party indicated that it did
not challenge the admissibility of the complaint. It added that the
deportation order against the complainant would not be enforced until the
Committee lifted its precautionary measure.
4.2 By letter dated 28 May 2003, the State party submitted its comments on
the merits of the complaint. It began by setting out the reasons why,
following a detailed review of the complainant's allegations, the Swiss
Asylum Review Commission, like the Federal Office for Refugees, was not
convinced that Zubair Elahi was seriously at risk of prosecution if deported
to Pakistan.
4.3 In its decision dated 5 August 2002, the Asylum Review Commission found
it surprising that the complainant, Christian by background and religion,
had been able to practice his religion, visit Christian prisoners every week
and attend Christian congresses abroad, sometimes for several months each
year, while on the other hand being the President of the faculty Muslim
Students Federation without his fellow students noticing that he was not a
Muslim. Such a situation, if true, at the very least indicated that there
was a modicum of tolerance in Pakistan, even assuming that the complainant
had concealed his religion on being appointed President of the Federation.
Indeed, the State party argues, the fact that the complainant had been
prepared to serve as President of the Muslim Students Federation at his
faculty showed beyond any doubt that he was not all worried about being
disturbed or threatened.
4.4 Other evidence also challenged the notion that the complainant had been
persecuted by the authorities or was wanted for blasphemy: between January
and July 1999, according to the State party, the complainant lived
undisturbed at his family's second home in Johannabad, some 20 kilometres
from Lahore. Although he claims to have been at his uncle's home in Karachi
in August and September 1999, where again he encountered no problems, the
complainant had a new passport issued in Lahore on 12 August 1999. The State
party argues that the complainant must plainly have stated his religion in
order to obtain the passport.
4.5 Presented with a request to review its decision, in which the
complainant mentioned for the first time that he had renounced Islam in
1996, the Swiss Asylum Review Commission turned down the request in a fresh
decision on 13 November 2002, referring in the main to an interim decision
of 10 October 2002 by the reporting magistrate who pointed out that the
complainant could not satisfactorily explain why he had not mentioned his
apostasy before the review proceedings. The reporting judge also observed
that the evidence supplied by the complainant would not alter the
Commission's conclusions regarding the blasphemy proceedings. In the course
of those proceedings the complainant had produced two reports from the
Lahore police (dated 16 June 1994 and 9 February 1998), the first relating
to an alleged kidnapping, the second, to allegations that the complainant
had had intimate relations with, or even raped, a Muslim woman. In the view
of both the reporting judge and the Commission, the two reports proved that
the complainant had no longer been having problems with the authorities by
the time he left Karachi.
4.6 The State party then proceeds to discuss the grounds for the
Commission's decisions in the light of article 3 of the Convention and the
Committee's case law. It considers that the complainant has done no more
than remind the Committee of the arguments raised before the national
authorities, producing no new evidence that might challenge the Commission's
decisions of 5 August and 13 November 2002. Among other things, the State
party considers, the complainant fails to explain the inconsistencies and
contradictions in his allegations to the Committee: quite the contrary, he
confirms them.
4.7 As regards the complainant's fears of being immediately arrested by the
police if sent back to Pakistan and of his life and physical safety being
threatened by his former fellow students and supporters of the Muslim
Students Federation, and the letter from the complainant's father stating
that, under pressure from the Muslim Students Federation, the police were
going to his home every month to try and arrest his son, the State party
finds it surprising that, according to an e-mail message dated 28 October
2002 from the President of the Christian Lawyers Association, no complaint
has been lodged against him. The State party draws attention, furthermore,
to the blatant contradiction between that e-mail and the letter dated 17
August 2002 (see paragraph 3.2 above), both signed by the same individual.
4.8 In the course of his appeal before the Swiss Asylum Review Commission,
the complainant produced his passport, issued in Lahore on 12 August 1999
when, according to him, the local security forces were looking for him in
connection with a criminal charge of blasphemy. Moreover, the complainant
had apparently not encountered the slightest problem when, leaving Pakistan,
he departed from Karachi airport on 5 September 1999. The State party finds
it highly improbable that a person wanted by the police for a capital
offence could have a new passport issued and take off from Karachi airport
without incident.
4.9 Citing the Committee's case law to the effect that article 3 affords no
protection to complainants who simply claim they are afraid of being
arrested on returning to their home countries [FN1] and in view of the
foregoing, the State party argues it may reasonably be concluded that the
complainant would not be in danger of arrest if sent home to Pakistan. Even
if he were, that "would not constitute substantial grounds for believing
that he would be in danger of being subjected to torture". [FN2]
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[FN1] Communication No. 57/1996 (P.Q.L. v. Canada): "... even if it were
certain that the author would be arrested on his return to China because of
his prior convictions, the mere fact that he would be arrested and retried
would not constitute substantial grounds for believing that he would be in
danger of being subjected to torture". The same applies a fortiori to the
mere risk of being detained (Communication No. 65/1997, I.A.O. v. Sweden).
[FN2] Ibid.
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4.10 The State party finds the importance which the complainant attaches to
apostasy surprising, particularly since he did not make the claim until 26
September 2002 when he requested a review of the initial decision by the
Swiss Asylum Review Commission. Given that the complainant finds the point
crucial, the State party feels that he might reasonably have been expected
to mention it earlier in the asylum proceedings. The complainant explains
the omission in his application for review partly by saying that he was
ashamed, partly by saying that he feared the consequences of his apostasy,
and lastly by saying that he did not realize the importance of the point
until after the Commission handed down its decision on 5 August 2002. The
State party finds this explanation unconvincing.
4.11 Even if the allegations of apostasy were credible, they would not
necessarily mean that the complainant would be in danger of being tortured
if sent home to Pakistan. The complainant says that his fellow students
discovered his apostasy in December 1998 and made serious threats against
him thereafter. The State party points out that if the police or the
complainant's Muslim opponents had really wanted to arrest or disturb him,
they could easily have found him at his family's second home while he was
living there between January and July 1999. But they did not. On the
contrary, the complainant was left untroubled both in his second home and in
Karachi, where he lived from August 1999 until his departure in September
1999. It is also surprising, the State party finds, that the Lahore police
report of 9 February 1998 explicitly mentions that the complainant is a
Christian when the complainant claims to have presided over the branch of
the Muslim Students Federation at his faculty from October-November 1997
onwards, his apostasy becoming common knowledge only in December 1998.
4.12 The State party alludes to the Committee's case law to the effect 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 be adduced for the risk of torture to qualify as "foreseeable, real and
personal" for the purposes of article 3, paragraph 1, of the Convention.
[FN3] Last, the State party refers to general comment No. 1, on the
application of article 3, in which the Committee specifies that "the risk of
torture must be assessed on grounds that go beyond mere theory or
suspicion".
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[FN3] Communication No. 94/1997 (K.N. v. Switzerland).
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4.13 Christians in Pakistan do not, generally speaking, appear to the State
party to be persecuted. In principle they can live their own lives without
really being harassed. The complainant's case proves it, the State party
argues, as his curriculum vitae goes to show. The complainant has, for
example, regularly been able to attend various Christian congresses abroad.
He has been able to visit Christian prisoners every week. Besides, his
family, which is also Christian, seems to be able to live without major
difficulty in Pakistan.
4.14 As regards threats to the complainant's life or physical safety from
supporters of the Muslim Students Federation or his former fellow students,
the State party points out that article 3 of the Convention must be
interpreted in the light of article 1. Article 1 of the Convention defines
the perpetrators of torture, limiting the scope of the notion to public
officials or other persons acting in an official capacity, or others acting
at the instigation of or with the consent or acquiescence of such officials
or other persons. The definition thus excludes any extension of the article
to cover cases in which torture is inflicted by a third party. The Committee
has held that "the issue whether the State party has an obligation to
refrain from expelling a person who might risk pain or suffering inflicted
by a non-governmental entity, without the consent or acquiescence of the
Government, falls outside the scope of article 3 of the Convention". [FN4]
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[FN4] Communications Nos. 83/1997 (G.R.B. v. Sweden), 130 and 131/1999 (V.X.N.
and H.N. v. Sweden), and 94/1997 (K.N. v. Switzerland).
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4.15 The State party explains that there have been instances of serious
violence against churches and other Christian institutions in Pakistan, but
they are certainly not tolerated by the authorities. President Musharraf
publicly condemned the tragic attack in Islamabad in August 2002, following
which the police arrested 27 Islamic extremists. The police arrested four
suspects after an attack in Lahore in December 1992, one of them a Muslim
clergyman. Furthermore, the Pakistani Government has arranged better
protection for Christian places of worship against extremist acts. The
Protestant International Church in Islamabad, for instance, is one of the
best protected buildings in Pakistan. And in recent months, the Pakistani
Government has outlawed seven Muslim fundamentalist organizations. [FN5]
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[FN5] Reuters report dated 14 August 2002.
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4.16 Given the Pakistani Government's reactions to serious violence against
Christian churches, it can hardly be argued, in the State party's view, that
the Government condones the violence or is loath to protect Christians. A
mere claim by the complainant that the police "will afford him no protection
against attempts on his life [by his former fellow students and Muslim
Students Federation supporters]" gives no grounds for concluding otherwise.
In the current case, the condition ratione personae is not met.
4.17 Lastly, the State party wholeheartedly endorses the grounds on which
the Swiss Asylum Review Commission found that the complainant's allegations
lacked credibility. It believes that the complainant's statements
emphatically do not suggest there are substantial grounds for believing, in
keeping with article 3, paragraph 1, of the Convention, that the complainant
would be in danger of being tortured if sent back to Pakistan.
Complainant's Comments on the State Party's Observations
5.1 In a letter dated August 2002, the complainant stands by the points made
in his initial complaint.
5.2 He also relates the difficulties he faced in living in Pakistan after
escaping from the police station in Lahore in early January 1999. He
explains that he had to go into hiding between January and July 1999 at his
family's second home in Johannabad, where he lived with the doors locked and
windows darkened, being supplied with food in secret by his father while
avoiding being spotted by the neighbours. His uncle had then hidden him for
a month in Karachi.
5.3 On the subject of his passport, the complainant explains that it is
customary in Pakistan to employ a go-between to deal with the formalities of
obtaining a passport. That is what his father had done; it did not diminish
the danger he had been in.
5.4 The complainant confirms that the police report of February 1998 refers
to him as a Christian. He maintains, however, that his conversion to Islam
was not known about outside the confines of the University of Lahore, which
only discovered his apostasy in December 1998 and, thus, only informed the
police sometime thereafter.
5.5 The complainant points out that, irrespective of the plausibility of the
statements he made in the course of his application for asylum in
Switzerland, the documents submitted testify to his conversion to Islam on
21 February 1990 and his second baptism in accordance with the Roman
Catholic rite on 27 February 1996.
5.6 Lastly, while he does not deny that the Pakistani authorities are
opposed to public acts of violence against Christians and Christian
facilities, the complainant avers that he, as an apostate, and given the
more restrictive law and jurisprudence relating to blasphemy, is in danger.
He adds that pro-Islamic and anti-Christian sentiment is on the rise in
Pakistani State institutions, including the police and the justice system,
and that the laws on blasphemy are interpreted restrictively. He also
alludes to an article dated 10 July 2003 about an editor at the Frontier
Post daily newspaper who was sentenced to life imprisonment for publishing a
letter that was found to be critical of Islam. Lastly, the complainant
concludes that it is entirely plausible that, on returning to Pakistan, he
will be immediately denounced for blasphemy, arrested by the police,
tortured and condemned to death.
Issues and Proceedings Before the Committee
6.1 Before considering any claim 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. In the present case the Committee
also notes that the State party has not challenged the admissibility of the
complaint, which it therefore finds admissible. As both the State party and
the complainant have commented on the merits of the complaint, the Committee
now proceeds to examine the case on its merits.
6.2 The Committee must determine whether sending the complainant back to
Pakistan would violate the State party's obligation under article 3 of the
Convention not to expel or return (refouler) an individual 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, as called for in article 3, paragraph 1, of
the Convention, whether there are substantial grounds for believing that the
complainant would be in danger of being subjected to torture if sent back to
Pakistan. In doing so, it must take into account all relevant
considerations, pursuant to article 3, paragraph 2, including the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights. The purpose of the exercise, however, is to determine whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which he would return. Hence the existence of a
consistent pattern of gross, flagrant or mass violations of human rights
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. Conversely, the absence of
a consistent pattern of gross violations of human rights does not mean that
a person is in no danger of being subjected to torture in the specific
circumstances of his case.
6.4 The Committee recalls its general comment No. 1 on the application of
article 3, which reads:
"Bearing in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that the author
would be in danger of being subjected to torture were he/she to be expelled,
returned or extradited, the risk of torture must be assessed on grounds that
go beyond mere theory or suspicion. However, the risk does not have to meet
the test of being highly probable." (A/53/44, annex IX, para. 6).
6.5 In the present case, the Committee notes that the State party has drawn
attention to inconsistencies and serious contradictions in the complainant's
accounts and submissions which call into question the truthfulness of his
claims. The Committee also takes note of the information furnished by the
complainant on these points.
6.6 As regards the first part of the complaint, which concerns the risk of
arrest by the police if the complainant returns to Pakistan, the complainant
argues that there are criminal proceedings pending against him for
blasphemy.[FN6]Yet the Committee observes that the letters from the
complainant's father dated 20 June 2002 and the President of the Christian
Lawyers Association dated 17 August 2002 which mention those proceedings are
contradicted by the CLA President in the e-mail he sent on 28 October 2002;
this has, incidentally, been remarked upon by the State party, but the
complainant has made no comment. Similarly, the fact that the complainant
spent seven months at his father's second home, then two months at his
uncle's home, without being troubled by the police when the police were
supposed to be searching for him for blasphemy, particularly after he had
escaped from a police station, does not seem plausible. The same can be said
of the complainant's acquisition of a new passport and untroubled departure
from Karachi airport. The complainant's later comments on these points (see
paragraphs 5.3 and 5.5 above) do not satisfactorily address these
inconsistencies.
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[FN6] Following a complaint to the police from the Muslim Students
Federation when it learned of the complainant's Christian activities while
he was serving as President of the Federation.
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6.7 The second ground put forward by the complainant for his arrest has to
do with his apostasy in 1996. The Committee observes that this argument was
only put forward as a reaction to the Swiss authorities' decisions to turn
down the complainant's application for asylum, and the complainant - who had
a lawyer in attendance throughout the proceedings - has been unable to
provide a consistent and convincing explanation for its tardy production.
The complainant does not contest this point in his comments of 4 August
2002.
6.8 As regards the second part of the complaint, which concerns threats to
the complainant's physical safety, the Committee finds, first, that the
complainant has not substantiated his allegation of ill-treatment while in
detention in early January 1999. Similarly, the assertion by the complainant
that he is in danger of being tortured by the police and condemned to death
if sent back to Pakistan are contradicted by the Committee's observations
concerning the risks of arrest. This assertion, too, is supported by
inadequately substantiated, not to say contradictory, arguments from the
complainant in his comments of 4 August 2002.
6.9 In the light of the foregoing, the Committee concludes that the
complainant has not demonstrated that there are substantial grounds for
believing that sending him back to Pakistan would expose him to real,
substantial and personal danger of being tortured within the meaning of
article 3 of the Convention.
7. Accordingly, the Committee against Torture, acting under article 22,
paragraph 7, of the Convention, concludes that the complainant's removal to
Pakistan by the State party would not constitute a breach of article 3 of
the Convention.
[Adopted in English, French, Russian and Spanish, the French 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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