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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 14 November 2005,
Having concluded its consideration of complaint No. 237/2003, submitted to
the Committee against Torture by Ms. M. C. M. V. F. 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 and the State party,
Adopts the following:
Decision of The Committee Against Torture Under Article 22 of the Convention
1.1 The complainant (submissions of 7 August 2003 and 10 September 2003) is
Ms. M. C. M. V. F., a Salvadorian citizen, acting on behalf of herself, her
husband V. M. F. Z. and their children P. C. F. M. and V. M. F. M. The
family is facing expulsion from Sweden to El Salvador. The complainant
claims that the expulsion of the family would constitute a violation by
Sweden of article 3 of the Convention against Torture. She is not
represented by counsel.
1.2 On 4 April 2005, the complainant requested the Committee to adopt
interim measures of protection. She informed the Committee that in November
2004 the Swedish authorities were searching for her in order to enforce the
deportation order and that she managed to escape from being arrested. On 12
April 2005, the Special Rapporteur on New Communications and Interim
Measures, acting on behalf of the Committee, declined the complainant's
request.
Factual Background
2.1 In 1987, the complainant joined a committee for the unemployed (Codydes)
and the Salvadorian Women's Movement (MSM) in El Salvador, which protested
against certain government policies. As a result of the political repression
against social activists, the complainant joined the guerrilla movement
Frente Farabundo Mart� para la Liberaci�n Nacional (FMLN), and became an
active comrade leading the women's division of eastern San Salvador.
2.2. On 11 November 1989, the complainant was apprehended by police agents
and violently pushed into a pick-up. She was taken to a police facility
where she was allegedly beaten and forced to take off her clothes before
being subjected to an interrogation about the activities of FMLN's members.
When she refused to answer the questions, the officers put a plastic bag
containing lime over her head. She was subjected to this type of
interrogation several times. She was allegedly abused, repeatedly beaten and
given electric shocks. She remained in detention for 40 days, during which
she was not taken before a judge or visited by a doctor. She was released on
19 December 1989, thanks to ICRC intervention.
2.3 After her release, the complainant and her two children went into
hiding. In 1990, in the midst of an FMLN campaign for municipal elections, a
vehicle with tainted windows attempted to run her over. She did not file a
complaint with the police, but the FMLN publicly denounced the event. Her
husband was threatened, apparently in connection with his activities as a
journalist. The complainant also received death threats over the telephone.
Her husband applied for asylum for the whole family at the Swedish embassy.
While their application was still pending, on 22 June 1991, the complainant
was again intercepted by a vehicle of the security forces, forced to board
the car and taken to the police headquarters where she was interrogated,
beaten, almost asphyxiated with a plastic bag containing lime, and
administered electric shocks to her body, including her vagina. She was
released on 31 July 1991. She did not have access to a lawyer nor was she
brought before a judge. For fear of reprisal, the complainant did not report
the latter incident to the police, to any human rights organization or to
the courts. She and her family went into hiding and attempted to contact the
Swedish embassy. Meanwhile, their application for asylum had been
discontinued.
2.4 In 1992, after the Government and the FMLN had signed the Peace Accords,
the complainant was actively involved in the constitution of the new
political party FMLN. She gave testimony of the torture she had experienced
to the UN-led Truth Commission which investigated human rights violations
that had occurred during the internal armed conflict in El Salvador. She was
disappointed with the amnesty law passed by the right-wing government of Mr.
Alfredo Cristiani immediately after the release of the Commission's report,
granting a general pardon to members of the military and the security forces
that had allegedly been involved in human rights violations. In 1994, she
learned that all the files concerning the activities of FMLN members had
been transferred to the Military. One of her torturers was admitted to the
new police force created in accordance with the Peace Accords. She was
unable to get a job because official records commonly required in employment
applications portrayed her as having a "subversive background". In 1996, she
participated as a candidate in the municipal elections of San Salvador. She
submits that, by that year, almost 30 FMLN members had been killed by death
squads. The death squads are said to be supported by right-wing persons with
close ties to the government.
2.5 By the end of 1999, after her husband published an article unmasking a
gang of organized crime which included former members of the military and
the police, the complainant received more death threats. Her husband was
told that he would be killed unless he went into hiding. They received
another telephone call threatening that their daughter would be raped if she
came back from Sweden where she was visiting her grandmother. In 2000, when
the complainant was returning home from a political meeting, she was
attacked by people who were driving a vehicle with tainted windows, and
tried to run her over. As the family feared for their lives, they moved to
another house which was later on destroyed in an earthquake in January 2001
On 16 March 2001, they fled to Sweden where they applied for asylum on the
basis of political persecution, as well as having become victims of torture
and natural disaster. The family received judicial assistance and attended
an asylum hearing. The complainant was provided with psychological treatment
and diagnosed with post-traumatic stress disorder caused by the experience
of torture. The Swedish immigration authorities reopened the family's case
and, on 15 March 2002, rejected their asylum claim, stating that the human
rights situation in El Salvador had improved, that the threats had ceased
after 2000 and that the complainant's health had improved. After
unsuccessful appeals, the family was deported to El Salvador on 21 March
2003.
2.6 Upon arriving to San Salvador, the family settled in Soyapango, the same
place where the complainant had been tortured at first. This situation
allegedly had an enormous psychological impact on the complainant. On 31
March 2003, while the complainant and her daughter were driving in a taxi,
they were abducted by gunmen who ordered them to get off the taxi and forced
them into another vehicle, where they hit them with the guns, ordered them
to stay with their faces towards the floor of the car and pretended to shoot
them. The kidnappers behaved in the same manner and followed patterns
identical to those that the police had used when they had previously
captured the complainant. They searched the complainant's bag and passports.
The complainant and her daughter were released after 30 minutes and left in
a solitary wasteland close to a highway. The men warned them not to denounce
the incident to the police. In the days following the incident, the
complainant's neighbours were visited by individuals who inquired about her
and told them that she was a "communist". Her husband denounced the event to
the police, which registered the case as a robbery.
2.7 On 15 April 2003, after contacting the Salvadorian Lutheran Church, the
family moved to a shelter in San Salvador. They fled to Sweden on 27 May
2003 and applied for asylum on 5 June 2003. On 11 June 2003, the Swedish
immigration authorities rejected their application and ordered their
immediate expulsion from Sweden. On 31 July 2003, the appeal was rejected.
The complainant alleges that there is no other remedy available to her or
her family to challenge the expulsion order, and that she has exhausted
domestic remedies.
The Complaint
3.1 The complainant submits that she fears being subjected to torture and
being killed if deported to El Salvador. Although state agents are not
directly involved in the threats against her life and personal integrity as
well as the life and personal integrity of her family, the State's
responsibility is said to be engaged because of the impunity with which
death squads operate, and because the death squads are financed both by
right-wing personalities and the ruling party, and their members have
infiltrated the New National Civil Police which conducts a policy of terror
against FMLN's members.
State Party's Observations on the Admissibility and the Merits of the
Complaint
4.1 The State party states that, following the complainant's and her
family's arrival in Sweden on 22 March 2001, an initial interview was
conducted. In that interview the family stated that they were in need of
humanitarian help due to the earthquake in El Salvador. According to the
complainant's husband, they had also experienced political problems in the
past but had managed to overcome them. A second interview of the family took
place on 26 April 2001. On that occasion, they stated that due to the
complainant's political activities in the FMLN, she had been imprisoned and
tortured in 1989 and had been threatened by death squads until 1993. Since
the Peace Accords in 1992, she had not been politically active. The
complainant's husband worked as a journalist and had been harassed and
threatened by criminal elements until 2000. On 15 March 2002, the Migration
Board rejected the complainants' asylum application. It considered that no
reasons for asylum had been given and that the threats from criminal
elements were insufficient grounds for granting asylum. On 7 November 2002,
the Aliens Appeal Board upheld the decision of the Migration Board.
4.2 On 28 May 2003, the complainant and her family returned to Sweden and
re-applied for asylum on 5 June 2003. A third interview was conducted in
which the complainant stated that, a few days after their arrival in El
Salvador, she and her daughter were attacked while riding in a taxi. Three
men in a pick-up stopped the taxi and forced them into the pick-up. Two men
were masked and armed with guns. The men mistreated them and took a bag with
their passports and money, before leaving them in a motorway. The
complainant was uncertain whether the perpetrators were criminals of if they
were attacked for political reasons. On 11 July 2003, the Migration Board
rejected the complainant's application for asylum. It stated that
Salvadorian society was polarized and violence was frequent. Since the Peace
Accords in 1992, respect for human rights had improved significantly. The
Board found it unlikely that they had been attacked on account of the
complainant's political activities or her husband's background as a
journalist, but rather as a result of rampant crime. On 14 August 2003, the
Aliens Appeal Board upheld the decision of the Migration Board.
4.3 The State party contends that the complaint is inadmissible as
manifestly unfounded, pursuant to article 22, paragraph 2, of the Convention
and rule 107 (b) of the Committee's rules of procedure, and argues that the
complainant's claim that they are at risk of torture if returned to El
Salvador fails to reach the threshold of substantiation required for
admissibility.
4.4 On the merits, the State party states that according to recent reports,
El Salvador is a constitutional and multi-party democracy. Since the Peace
Accords in 1992, which brought an end to the armed conflict in El Salvador,
respect for human rights improved significantly. In 2002, there were no
reports of politically motivated killings or disappearances, and according
to several non-governmental sources, there was no increase in political
violence. According to the same sources, there were few complaints about
torture by police in 2002 and some police officers used excessive force and
mistreated detainees. In the general elections of March 2003, the FMLN won,
for the second time, a majority of seats in the Legislative Assembly. The
Constitution provides for freedom of speech and the press and the Government
generally respected these rights in practice. Journalists regularly and
freely criticised the Government and reported the views of the opposition.
Crime remained a serious problem in the country; organized crime was
widespread and violent crimes were common. Kidnapping for ransom was
frequent, even if the number of kidnappings had declined. Due to the 2001
earthquake, economic conditions deteriorated. This had caused a large number
of people to leave El Salvador, including more than 600 persons whom travel
agencies lured into going to Sweden by false advertisements, claiming that
Sweden had a special programme for accommodating Salvadorians.
4.5 The State party contends that great weight must be attached to the
opinions of the Swedish immigration authorities and their conclusions about
the complainant's credibility and need for protection. Although it may be
considered established that the complainant had been subjected to torture in
the past, this does not mean that she has substantiated her claim that she
would be at risk of being tortured if returned. The torture took place more
than ten years ago, and the requirement that the ill-treatment occurred in
the recent past to make evident the risk of being subjected to torture if
returned is not met. As far as the complainant's husband and their children
are concerned, they have neither claimed to have been subjected to torture
in the past, nor that would they risk torture if returned to El Salvador.
Great weight must be attached to the fact that the situation in El Salvador
has changed completely since the time of the complainant's arrest. In those
years, there was a civil war and massive human rights violations were
committed.
4.6 The State party notes that although the complainant was subjected to
torture in 1989 and 1991, she and the rest of the family did not leave El
Salvador until March 2001, just after the earthquake. The complainant and
her family left the country legally and without any difficulty on two
occasions, in 2001 and 2003. They received new passports in April 2003.
These factors indicate that the complainants were not even in 1991 in any
urgent need of protection and that there was no evidence that they were at
risk of any kind of persecution from the authorities of El Salvador today.
Neither before the Migration Board nor in their appeal to the Aliens Appeals
Board did she argue that they would be at risk of torture if returned.
Instead, the complainant's husband stated that they had managed to overcome
the political problems they faced in the past. It was not until their new
application in December 2002 that the risk of torture in the event of return
was raised.
4.7 The State party challenges the complainant's statements about her
political activities after 1992. In her second interview with the Migration
Board she was asked if she had been politically active after 1992 and she
replied in the negative. During the handling of the complainants'
application for asylum in Sweden, no further information was submitted about
her activities in the FMLN after 1992. Instead, the complainants argued
that, due to the complainant's background, she was still at risk of
persecution. Concerning the attacks on the complainant and her daughter in
March 2003, the Government contends that there is every indication that this
attack was a criminal one. The complainant herself had stated that she was
uncertain who the perpetrators were. The attack was reported to the police,
who registered it as a robbery. The complainant was robbed of some money and
their passports but no threats related to political activities were made.
The 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, according to Committee's jurisprudence,
outside the scope of article 3 of the Convention. The State party adds that
despite the fact that there are problems in El Salvador, it cannot be agued
that there exist a consistent pattern of gross, flagrant or mass violations
of human rights.
4.8 The State party concludes that the circumstances invoked by the
complainant do not suffice to establish that the alleged risk of torture
fulfils the requirement of being foreseeable, real and personal. The
complainant has not substantiated her claim that there are substantial
grounds for believing that she and her family would be in danger of being
tortured if returned to El Salvador, and that the enforcement of the
expulsion order would not constitute a violation of article 3 of the
Convention.
Complainant's Comments on State Party's Submissions
5.1 The complainant alleges that she has advanced solid grounds to
substantiate her claim that she and her family face a personal, real and
foreseeable risk of being subjected to torture if returned to El Salvador,
and she contends that the March 2003 incident was carried out by armed men
who acted in a pattern identical to that used by death squads. The
complainant has continued experiencing harsh consequences as a result of the
torture she was subjected to.
5.2 The complainant contends that even after the signing of the Peace
Accords in 1992, the intelligence state service still operates with total
impunity against leftist militants. Even after the Peace Accords, there have
been at least 20.000 violent deaths, and several targeted murders and
attacks against leftist militants by "unknown persons". According to the
United Nations Development Programme, El Salvador is the second most violent
country after Colombia. The complainant invokes several press reports about
violent incidents to demonstrate the level of political violence in El
Salvador. She adds that in the past few months' 17 FMLN members were wounded
while participating in political demonstrations.
5.3 The complainant, while conceding that the FMLN is a legal party
represented in Parliament, contends that it is not able to secure the life
of several persons that, like the complainants, are mentioned in the
archives of the death squads or in the archives of the State Intelligence
Service, entities which operate with autonomy. The ruling Arena party is a
right-wing political party which is said to have backed up the death squads,
the murderers of Bishop Oscar Romero, and of six Jesuits priests as well as
hundreds of murders and attacks against human rights activists. The
complainant invokes information emanating from the Central Intelligence
Agency (CIA) to the effect that Roberto D'Aubuisson, the founder of Arena,
was in the 80's the leader of one of the death squads and participated in
the planning of Bishop Romero's assassination; members of Arena are involved
in death squads activities; and death squads recruit former members of the
military and the police. According to the same report, ARENA and members of
the military support right-wing terrorism. This and other reports confirm
that the illegal armed groups and parallel structures of power have not been
dismantled, and that ARENA continues to financing and supporting the
right-wing extremist terrorism.
5.4 The complainant recalls that the Salvadorian Human Rights Ombudsman had
denounced, in 2003, that torture was inflicted by the police on detainees,
and that she had received death threats as a result.
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 it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), of the Convention, that the same matter
has not been and is not being examined under another procedure of
international investigation or settlement. The Committee further notes that
domestic remedies have been exhausted, as acknowledged by the State party,
and that the complainant has sufficiently substantiated the facts and the
basis of the claim, for purposes of admissibility. Accordingly, the
Committee considers the complaint admissible and proceeds to its
consideration of the merits.
6.2 The issue before the Committee is whether the removal of the complainant
and her family to El Salvador 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 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 El Salvador. In assessing this 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.
However, the Committee recalls 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 or she 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;
there must be additional grounds 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.
6.4 The Committee observes that the acts of torture that the complainant
allegedly suffered occurred in 1989 and 1991, when El Salvador was mired in
internal armed conflict, and when there was a pattern of massive and gross
human rights violations in the country. The Committee notes that the general
situation of El Salvador has changed since the Peace Accords came into
effect in 1992. The FMLN, formerly a guerilla group, is now a political
party which won the majority of seats in the 2003 parliamentary elections.
The Committee has not been persuaded that the incidents that concerned the
complainant in 2000 and 2003 were linked in any way to her previous
political activities or those of her husband, and considers that the
complainant has failed to prove sufficiently that those incidents be
attributable to state agents or to groups acting on behalf of or under the
effective control of state agents. Notwithstanding the occurrence of
violence and confrontation in El Salvador, the Committee is not persuaded
that the complainant or any members of her family would face a real,
personal, and foreseeable risk of torture if deported from Sweden.
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 and her family to El Salvador
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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