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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 16 November 2006,
Having concluded its consideration of complaint No. 227/2003, submitted to
the Committee against Torture by A. A. C. 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
complainants,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture
1.1 The complainant is A. A. C., a Bangladeshi national born in 1970 and
awaiting deportation from Sweden to Bangladesh at the time of submission of
the complaint. He claims that his expulsion to Bangladesh would constitute a
violation by Sweden of articles 3 and 16 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel.
1.2 On 7 February 2003, the State party was requested, pursuant to rule 108,
paragraph 1 of the Committee's rules of procedure, not to expel the
complainant while his complaint was under consideration by the Committee. On
24 March 2003, the State party informed the Committee that it acceded to its
request not to expel the complainant.
The Facts as Presented by the Author
2.1 The complainant is a sympathizer of the Bangladesh Freedom Party (the
BFP) since 1992 and became a member in 1994. In 1995, he was elected as
information secretary of the BFP in the Naria police district. His duties
included arranging meetings, putting up posters, writing slogans, recruiting
members, holding speeches and acting against the then governing party, the
Awami League. When the national leaders of his party were arrested and
sentenced for the murder of Sheikh Mujibur Rahman, the father of the then
Prime Minister and the founder of the Awami League, the complainant arranged
demonstrations in favour of them being freed. On 15 August 1997, he was
arrested while holding a demonstration in protest against the Awami League.
He was accused of illegal possession of arms, making bombs and distributing
anti-State propaganda. He was taken to a cell at the police station in Naria,
held during 10 days and subjected to maltreatment from which he still
suffers. He was released by paying a bribe.
2.2 The complainant left Naria and went to Dhaka where he stayed with his
maternal uncle. After a few days, members of the Awami League saw him and
followed him to his uncle's home. On the same night, he saw the police enter
through the gate of his uncle's home, and he jumped out of a window and took
a train to Sylhet, where his sister lives. After a few days, the police came
to his sister's home with a person from Naria. The complainant managed to
escape and went to the hills in Sylhet.
2.3 In the first week of December 1997, the complainant returned to his home
in Naria and resumed his political activities. He was attacked and
maltreated by supporters of the Awami League, on 9 January 1998, on his way
home. His brother then took him to another residential area where his wife
visited him and told him that the police were looking for him because of
accusations made against him, and that the Awami League had also been at his
home to collect money. His wife became pregnant and one month before her
delivery, he moved back to Naria, where he again resumed, in secret, his
political activities.
2.4 On the night of 29 June 1999, the police arrested him at home and took
him to the police station. He was accused of possessing illegal arms and
explosives, the making of bombs and anti-State propaganda. This time he
remained in custody for 15 days. During this period, the police struck him
with fists and a metal pipe, and kicked him. He was released after a bribe
was paid. Thereafter, he did not dare to stay at home but lived in three
different locations.
2.5 In February 2000, the complainant planned to go back to Sonda by boat
but a neighbour warned him that she had heard how two supporters of the
Awami League planned to use weapons against him in the harbour. He,
therefore, returned to Dhaka and after having stayed there for a while, he
left for Khulna.
2.6 In August 2000, he went to India for medical treatment for the problems
that he had because of the maltreatment he had been subjected to in June
1999 � respiratory difficulties and pain in the back. In October 2000, when
he came back to Bangladesh, his family told him that he was accused of
possession of illegal arms and explosives, the making of bombs and
distributing anti-State propaganda. He had also been accused of crimes
against the public order and treason in accordance with the Public Safety
Act. During the then Prime Minister's visit to Shariatpur district, the
police had found explosives in the district and the complainant was regarded
as being responsible for their presence there. The complainant stayed in
hiding until he left Bangladesh on 4 December 2000.
2.7 On 5 December 2000, the complainant entered Sweden and requested asylum
two days later. He stated that he risked being sentenced to at least 15
years in prison because of false accusations if he were forced to return to
Bangladesh. He also stated that he risked being arrested by the police and
subjected to maltreatment or torture, and subsequently killed by the police
as well as being executed by supporters of the Awami League. The complainant
stated to the Swedish authorities that his health was very bad � he suffered
from anxiety, lack of sleep, nightmares, difficulties concentrating and
vertigo. He heard noises from the torture to which he had been subjected,
and he heard his son crying. He was feeling such enormous pain after the
maltreatment that he had difficulties in sitting still for any length of
time. He also submitted medical reports, from which it emerged that because
of anguish he suffers from headaches, vertigo, lack of sleep and, sometimes,
respiratory difficulties. The complainant invoked reports by Amnesty
International and the US Department of State, [FN1] which, he claims,
support the conclusion that police torture of activists and political
opponents to extract information and to intimate is often instigated and
supported by the executive branch. He also pointed out that policemen who
had been guilty of torture seldom were punished or dismissed from their
jobs.
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[FN1] The U.S. Department of State (Bangladesh: Country Reports on Human
Rights Practices) and Amnesty International (International Report 2002;
Endemic Torture since Independence (ASA 13/008/2000); Bangladesh: Torture
and Impunity (ASA 13/01/2000); Amnesty International Press Release:
Bangladesh: Politically Motivated Detention of Opponents Must Stop (ASA
13/012/2002), issued 6 September 2002).
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2.8 The Migration Board denied his application on 9 April 2001 stating that
the complainant could not be regarded as a refugee according to the 1951
Convention on the Status of Refugees and the Swedish Aliens Act of 1989.
Firstly, the Board found that the complainant did not face any risks from
the Bangladeshi authorities on account of his political activities since the
BFP is a legal party; his political activities had taken place at a
relatively low level and had been allowed. Secondly, the Board did not
believe the complainant's statement regarding the accusations against him,
since it was not credible that he would be released, even by paying a bribe,
if he were accused of several offences, new and old. The Board also pointed
out that the complainant had had a passport issued on 14 August 2000 in
spite of the accusations against him. Thirdly, the Board considered that the
complainant had a chance in getting his case reviewed through legal
procedures in Bangladesh, which could be considered to be adequate and
impartial.
2.9 The Migration Board also found that the complainant could not be
regarded as a person otherwise in need of protection in accordance with the
Aliens Act, because the maltreatment he suffered in August 1997 and June
1999 was not permitted by the Government or the authorities in Bangladesh,
but constituted acts of cruelty committed by solitary policemen who had
taken the law into their own hands. The Board applied the same reasoning for
maltreatment committed by supporters of the Awami League. Lastly, the Board
found that the complainant was not entitled to a residence permit in Sweden
on humanitarian grounds.
2.10 In his appeal to the Aliens Appeals Board, the complainant referred to
the conclusions of Swedish doctors. One concluded that the police had
subjected the complainant on two occasions, in 1997 and 1999, to the
following torture: hit with blunt instruments, such as fists, and a weapon;
stabbed with a knife and glass; burned with a heated metal pipe; beaten on
the soles of his feet with a police truncheon; hung from the ceiling;
subjected to electrical shocks in his temples; attempted suffocation by
having his head thrust under water in a barrel and by having water infused
into his nose; threatening against the complainant's life by putting a
syringe filled with poison and a gun to his head. He found that the
complainant had suffered permanent physical damage in the form of chronical
headache, pain in the lower section of his back, loss of feeling in the left
side of his face, sometimes a weakness in the whole of the left section of
his body, attacks of vertigo. The second doctor certified that the
complainant had been subjected to medical treatment in Sweden since 8
January 2001, when he contacted the medical ward in �sthammar and was
diagnosed as being in a condition of anxiety. The complainant was in contact
with the other medical wards in January and April 2001. According to the
certificate, the complainant's symptoms were characterized by: feelings of
being pursued; fear, and having difficulties in feeling confidence in
people; physical symptoms in the form of sickness when he sees a police car;
pain in his body when he thinks of the torture; lack of sleep; nightmares;
attacks of feelings of being absent. The complainant also confessed to
having thoughts of committing suicide. The doctor concluded that the
diagnosis of Post Traumatic Stress Disorder (PTSD) in all probability was
correct, and that it could be described as a case of 'mental illness that
had been brought about by very difficult experiences'. The doctor further
concluded that there was information, which led to the conclusion that the
complainant was in a process of suicidal development. A third doctor's
report confirmed that the complainant was in contact with her ward since 11
July 2001 after being referred there by another medical ward and by the
psychiatric clinic at St. G�ran's Hospital. The complainant was diagnosed
with depression and PTSD related, inter alia, to the persecution and the
torture to which he has been subjected in Bangladesh. A fourth doctor, a
psychiatrist, confirmed this diagnosis describing the complainant as showing
strong feelings of anxiety, flashbacks from situations of torture, being
always on the move and depressive, and having difficulty in concentrating.
The complainant insisted that a special doctor should be appointed by the
Aliens Appeals Board in order to scrutinize the medical evidence in the
case. On 23 May 2002, the Board decided to deny the motion, without giving
any reasons for the decision.
2.11 In his appeal, the complainant stated that the decision by the
Migration Board was inconsistent, since the Board seemed not to believe his
statement regarding the question of what he had been subjected to by the
Bangladeshi authorities. The Board stated that it had not doubted his
statement regarding the torture and maltreatment to which he had been
subjected, however, it had not believed his statement about the arrests. By
decision of 24 July 2002, the Aliens Appeals Board upheld the decision by
the Migration Board and shared its findings on the general conditions in
Bangladesh and its legal system. The Aliens Appeal Board found that the
complainant could not be considered as a refugee or as a person otherwise in
need of protection according to the Aliens Act; and that 'considering all
the circumstances' he could not be granted a residence permit for
humanitarian reasons.
2.12 On 4 February 2003, the complainant was taken into police custody
awaiting execution of the deportation order.
The Complaint
3.1 The complainant claims that there are substantial grounds for believing
that he would be subjected to torture if he were forced to return to
Bangladesh, in violation of article 3 by Sweden of the Convention. The
complainant refers to the medical reports (paragraph 2.10 above) concluding
that he had previously been subjected to torture and submits that his
description of the torture to which he has been subjected coincides with
what is generally known through the human rights reports about torture in
Bangladesh. Those reports also support the conclusion that police torture of
political opponents is often instigated by the executive; that the judiciary
system does not provide sufficient protection to the victims, and that the
lower courts are not politically independent of the executive, and that the
decisions of the higher courts are often ignored or circumvented by the
executive. The complainant also claims that the elections in 2001, where the
Awami League was replaced by the Bangladesh Nationalist Party (the BNP), did
not constitute such a fundamental change in the political circumstances in
Bangladesh that the grounds for persecution no longer exist; and that people
who had been falsely accused or charged on account of their political
activities were acquitted of these accusations or charges. In view of the
prevailing situation in the country and of the fact that neither the
Migration Board nor the Aliens Appeals Board had questioned the fact the
complainant was subjected to torture in Bangladesh, he maintains that he
would still run a foreseeable, substantial and personal risk of being
subjected to arrest and torture if he were forced to return to Bangladesh.
3.2 He also claims that the execution of deportation order would in itself
constitute a violation of article 16 of the Convention, in view of his
fragile psychiatric condition and severe Post Traumatic Stress Disorder,
resulting from the torture, to which he had been subjected.
The State Party's Observations on Admissibility and Merits
4.1 By letter of 24 April 2003, the State party acknowledges that all
domestic remedies were exhausted but disputes that the complaint disclosed
the minimum level of substantiation required for the purposes of
admissibility. [FN2]
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[FN2] Reference is made to Y v. Switzerland, Communication No. 18/1994,
Views adopted on 17 November 1994, para 4.2.
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4.2 The State party also contends that the claim of a violation of article
16 in relation to the execution of the deportation order, in view of the
complainant's fragile psychiatric condition and severe PTSD, is incompatible
with the provisions of the Convention. The State party invokes to the
Committee's general comment on article 3, which spells out that a State
party's obligation to refrain from returning a person to another State is
only applicable if the person is in danger of being subjected to torture, as
defined in article 1. [FN3] There is no reference to "other acts of cruel,
inhuman or degrading treatment or punishment" in article 3, as there is in
article 16. The purpose of article 16 is rather to protect those deprived of
their liberty or who are otherwise under the factual power or control of the
person responsible for the treatment or punishment.
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[FN3] The Committee's General Comment on the implementation of article 3,
dated 21 November 1997. Reference is made to Peter Burns, "The United
Nations Committee against Torture and its role in refugee protection"
(Institute of Public Law, University of Bern, 2001).
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4.3 The State party recalls the procedures governing asylum claims in
Sweden. According to the Aliens Act, an alien is entitled to a residence
permit in Sweden, inter alia, if he has left his country of nationality
because of a well-founded fear of being sentenced to death or corporal
punishment, or of being subjected to torture or other inhuman or degrading
treatment or punishment. Under chapter 8, the national authorities have to
consider the same matters when it comes to enforcing a decision to refuse
entry or executing an expulsion decision. Even if a decision to refuse entry
or an expulsion decision become enforceable after appeal, the alien may be
granted a residence permit if he files a so-called new application to the
Aliens Appeals Board. An expulsion order is enforced only where an alien has
refused to abide by the relevant order voluntarily; coercive measures must
be strictly limited to what is necessary and proportionate, and be
implemented with due regard to humanitarian considerations as well as
respect for personal dignity of the alien. An alien is entitled to a
residence permit, inter alia, if he for humanitarian reasons should be
allowed to settle in Sweden. Serious illness, both mental and physical, may
in exceptional cases constitute humanitarian reasons for granting residence
permit.
4.4 As to the facts of the complaint, the State party clarifies that at his
interview by the Migration Board on 1 March 2001, he stated that he was
politically active in Bangladesh and a member of the BFP. On account of his
activities he had been persecuted by the police and the Awami League and
been subjected to false accusations. In August 1997, he was arrested during
a demonstration and was held in custody for ten days. During this time he
was maltreated and tortured by the police being accused of possessing
illegal weapons, of producing bombs and of subversive activities. A bribe
was paid for his release. During the interview the complainant stated in
details circumstances preceding an attack on him by the supporters of the
Awami League on 9 January 1998, as well as his departure from Bangladesh.
The complainant explained that a person who had his passport and who paid
bribes to different persons at the airport escorted him to the airplane.
4.5 On 9 April 2001, the Migration Board rejected the complainant's
application for asylum and ordered his expulsion to the country of origin.
The Migration Board did not find the complainant to be entitled to asylum,
in need of protection or entitled to a residence permit for any other
reasons. The complainant appealed the decision but the Aliens Appeals Board
turned down the appeal on 24 July 2002. After the decision from the Aliens
Appeals Board, the complainant went into hiding. He was discovered by the
police in connection with a labour inspection on 4 February 2003 and taken
into custody.
4.6 On the merits, the State party argues that, in the light of the general
human rights situation in Bangladesh and the evidence advanced, the
complainant failed to make out a personal and substantial risk of torture,
as defined in article 1, which would render his expulsion contrary to
article 3. As to the general situation, the State party concedes that it is
problematic, but points to progressive improvement over a longer term.
Following the introduction of democratic rule in the early 1990's, no
systematic oppression of dissidents has been reported, and human rights
groups are generally permitted to conduct their activities. The BNP returned
to power (after holding power from 1991 to 1996 and being in opposition from
1996 to 2001) following elections on 1 October 2001 that were declared free
and fair. Violence is however a pervasive element in political life, with
supporters of different parties clashing with each other and with police
during rallies and demonstrations. Although the Bangladesh Constitution
prohibits torture and cruel, inhuman and degrading treatment, the police
reportedly use torture, beatings and other forms of abuse while
interrogating suspects. Acts of torture are seldom investigated, and the
police, whose members are allegedly utilized by the Government for political
purposes, are reluctant to pursue investigations against persons affiliated
with the ruling party. The higher courts are by and large independent and
rule against the Government in high profile cases. Persons are occasionally
tried in absentia by the courts, although this is rarely done. The Public
Safety Act was also repealed by the Government in April 2001.
4.7 In 2002, members of the State party's Aliens Appeals Board visited
Bangladesh, meeting with members of Parliament and the Executive,
representatives of local embassies and international organizations, and,
according to the classified report from this tour, found no institutional
persecution. While "high profile" persons may be arrested and harassed by
the police, political persecution is rare at the grass roots level. Leading
politicians may be subjected to false accusations for murder, subversive
activities and possessing weapons. The State party adds that as of 1998
Bangladesh is a party to the Convention against Torture and, since 2001, to
the International Covenant on Civil and Political Rights.
4.8 Turning to the real, personal and foreseeable risk of torture which the
complainant is required to face under article 3 in the event of a return,
the State party points out that its authorities explicitly applied the
relevant Convention provisions. In addition, the competent authorities are
in an advantageous position in assessing applications, particularly in the
light of the experience gained in granting 629 cases on article 3 grounds in
1'427 cases from Bangladesh over a 10-year period. Accordingly, weight
should be given to the decisions of the Immigration and Aliens Appeals
Boards, whose reasoning the State party adopts.
4.9 The State party submits that the complainant in this case bases his
claim on a presumption that he risks being tortured upon return to
Bangladesh as a consequence of his membership in the BFP and because of the
accusations against him under the Public Safety Act, now repealed. Given
that the Bangladeshi political context has significantly changed by virtue
of the 2001 electoral defeat of the Awami League government, the
complainant's alleged persecutor, there would appear no reason for the
complainant to fear persecution from the police, let alone a danger of being
subjected to torture.
4.10 In addition, the State party observes that the complainant had not held
any leading position within the party, while as stated in the report of the
Aliens Appeals Board (paragraph 4.7 above), party members at grass-root
level are rarely persecuted by the authorities. Even if the complainant may
have been subjected to torture in the past, it has not been shown that he is
still wanted by the police today, nor that he would still be in danger of
being persecuted if he returned to Bangladesh now.
4.11 The State party notes that if there is a current risk of persecution
from the Awami League, this is a wholly non-governmental entity and the acts
of the Awami League cannot be attributable to the authorities. According to
the jurisprudence of the Committee, such persecution falls outside the scope
of article 3 of the Convention. [FN4] In addition, this persecution would be
of a local character and the complainant could therefore secure his safety
by moving within the country.
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[FN4] Reference is made to G.R.B. v Sweden, Communication No 83/1997, Views
adopted on 15 May 1998, para 6.5.
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4.12 The State party notes that the complainant resumed his political
activities in December 1997 after being allegedly released from custody in
August 1997. Furthermore, after his second detention in June 1999, the
complainant made no attempt to leave the country but stayed there until
December 2000, with the exception of a visit to India in August and
September 2000. The State party suggests that this indicates that not even
the complainant believed himself to be in danger of being arrested and
tortured even at that time. The State party questions the fact that the
complainant, allegedly arrested by the police and accused of possessing
illegal weapons and subversive activities in August 1997 and in June 1999,
would have no difficulty in obtaining a passport from the authorities in
August 2000.
4.13 On the claim under article 16, the State party refers to two cases in
which there was medical evidence of PTSD and a claim that state of health
prevented expulsion. In G.R.B. v Sweden, [FN5] the Committee considered that
an aggravation of state of health possibly caused by deportation did not
rise to the threshold of treatment proscribed by article 16, attributable to
the State party, while in S.V. v Canada, [FN6] the Committee considered the
claim insufficiently substantiated. [FN7]
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[FN5] Supra n.4, para 6.7.
[FN6] Reference is made to S.V. v Canada, Communication No 49/1996, Views
adopted on 15 May 2001, para 9.9.
[FN7] The State party refers to the jurisprudence of the European Court of
Human Rights on equivalent provisions that have held that ill-treatment must
rise to a minimum level of severity, and that there is a high threshold
where the case does not concern the State party's responsibility for
infliction of harm. See, Cruz Varas and others v. Sweden, judgment of 20
March 1991, Series A no. 201, para 83 and the Bensaid v. the United Kingdom
judgment of 6 February 2001, para 40.
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4.14 The State party acknowledges that according to the medical evidence the
complainant suffers from PTSD and his health has deteriorated during
consideration of his asylum application. It considers, however, that there
is no substantial basis for his fear of returning to Bangladesh. The State
party notes that in March and April 2001, the complainant applied for an
exception from the requirement to have a work permit, since he had been
offered a job. After the decision of the Aliens Appeals Board in July 2002,
the complainant has remained in hiding. When he was discovered by the
police, he was working as a greengrocer. Thus, the State party submits, the
complainant's psychiatric condition should be assessed in that light and has
not been of such seriousness that it prevented him from working. In
addition, in enforcing the expulsion order, the State party ensures that it
is carried out in a humane and dignified manner, taking into account the
complainant's state of health. The State party, therefore, contends that the
possible aggravation of the complainant's state of health that his
deportation may cause would not amount to cruel, inhuman or degrading
treatment envisaged by article 16 of the Convention, attributable to the
State party.
The Complainants' Comments on the State Party's Observations
5.1 On 18 July 2003, the complainant maintained that his communication
fulfils the minimum standard of substantiation for the purposes of
admissibility of a claim under article 3. He also contends that the
communication fulfils the minimum criteria of article 16 and that the
execution of the expulsion order would be in violation of this article by
the Swedish authorities. Despite his poor mental health, he was taken into
custody and the speedy manner in which the execution was planned to take
place, shows that it would not have taken place in the humane and dignified
way. He refers to a report of the European Commission Against Racism and
Intolerance (the ECRI), [FN8] which in turn refers to the criticism that has
been raised against the Swedish authorities for executing expulsion orders
without respect for the dignity of the individual involved.
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[FN8] Reference is made to the Report of the European Commission Against
Racism and Intolerance made public on 15 April 2003.
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5.2 In addition to already submitted reports on the general human rights
situation in Bangladesh, the complainant also invokes an additional Amnesty
International report. [FN9] The report concludes that torture has been
widespread in Bangladesh for years, that successive governments have not
addressed the problem, and that there is a climate of impunity. Court
proceedings against a public employee, such as a police officer, are only
possible with the government's agreement, which is rarely forthcoming. The
complainant challenges the State party's assessment that activists at grass
roots level are not the subject of false accusations. He also reminds the
Committee of the 'declaration' made by the People's Republic of Bangladesh
that it would apply paragraph 1 of article 14 of the Convention against
Torture 'in accordance with the existing laws and legislation in the
country'. The complainant submits that contrary to the provisions of this
article, victims of torture in Bangladesh have not been able to obtain
redress and or compensation to which they are entitled. He refers to the
enactment of the so-called Joint Drive Indemnity Act that granted immunity
from prosecution to military and government officials for the instances of
torture that allegedly occurred during the so-called Operation Clean Heart.
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[FN9] Amnesty International, Bangladesh: Urgent need for legal and other
reforms to protect human rights (ASA 13/015/2003), published in May 2003.
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5.3 In relation to his personal circumstances, the complainant reiterates
that he faces a foreseeable, real and personal risk of torture if he is
returned to Bangladesh. Without contesting the statistics presented by the
State party (paragraph 4.8 above), the complainant argues that the State
party did not show how many of those who applied for asylum where granted
asylum or a residence permit as person otherwise in need of protection. He
also submits that compared to other categories, the asylum seekers from
Bangladesh are very few each year. [FN10] Thus, the experience of the State
party's immigration authorities regarding this category is far less than
that concerning other categories of asylum seekers. The complaint further
argues that no fundamental changes of the political situation in Bangladesh
have taken place. The BFP is a party that in so far as it still exists, is
in opposition to the present Government of four-party coalition headed by
the BNP. The complainant argues that neither the State party nor its
migration authorities contested this fact or his evidence of past torture.
He submits that, where it is established that a person has been subjected to
torture in the past, there should be a presumption that this person runs a
risk of torture in the future, unless circumstances have manifestly changed.
The complainant adds that a number of laws in Bangladesh, such as the Code
of Criminal Procedure and the Special Powers Act, create conditions that
facilitate torture by enabling the police to arrest a person on vaguely
formulated grounds, or without charge, and to keep him/her in prolonged
detention. While accepting that the Public Safety Act was repealed in April
2001, the complainant argues that the Special Powers Act and the other
legislation referred to by Amnesty International [FN11] are still applicable
and that it is not known of any case raised on the basis of Public Safety
Act which has been closed or withdrawn.
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[FN10] Reference is made to the UNHCR Report of November 2001 'Asylum
Applications in Industrialized Countries: 1980-1999'.
[FN11] Supra n.9.
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5.4 The complainant further explains (see paragraph 4.12 above) that he
obtained his passport in August 2000, that is before the accusations of
harbouring explosives, and illegal arms, making of bombs, distribution of
anti-State propaganda, crimes against public order and treason were made
against him.
Supplementary Submissions from the State Party and the Complainant's
Comments
6.1 In a further submission dated 1 September 2003, the State party
acknowledges that ECRI had had certain remarks on Sweden as regards the
removal of persons whose asylum application has been turned down. ECRI
observed, specifically, that there had been cases of persons who had against
their will been deported to countries completely unknown to them because of
difficulties in establishing their nationality. There were also cases of
excessive use of force and/or unusual means of restraint used by officers
during the expulsion of foreign nationals from Sweden. The State party
refers to an appendix of the report where the State party acknowledged that
there had been forced removals to countries that were not countries of
origin when there were difficulties in verifying the nationality of asylum
seekers but stated that ECRI 'pictures the situation in Sweden incorrectly'.
The State party confirms that the aim is always to remove persons to the
country of origin or a country where the person has a right to legally
remain.
6.2 In a further submission dated 11 November 2003, the complainant
maintains that the Swedish authorities have been criticized not only because
they sent an asylum seeker to the wrong country but also for the manner in
which the expulsion order has been executed. He submits that this is an
issue in his case and that the manner in which he has been treated by the
Swedish authorities violate article 16 of the Convention.
6.3 On 16 November 2005, the State party submitted that since a new remedy
to obtain a residence permit had come into force under temporary
legislation, the complaint should be declared inadmissible for
non-exhaustion of domestic remedies, or at least be adjourned awaiting the
outcome of the application of this new procedure. On 9 November 2005,
temporary amendments were enacted to the 1989 Aliens Act. On 15 November
2005, these amendments entered into force and were to remain in force until
a new Aliens Act entered into force on 31 March 2006. These temporary
amendments introduced additional legal grounds for granting a residence
permit with respect to aliens against whom a final refusal-of-entry or
expulsion order has been issued. According to the new Chapter 2, section 5 b
of the Aliens Act, if new circumstances come to light concerning enforcement
of a refusal-of-entry or expulsion order that has entered into force, the
Swedish Migration Board, acting upon an application from an alien or of its
own initiative, may grant a residence permit, inter alia, if there is reason
to assume that the intended country of return will not be willing to accept
the alien or if there are medical obstacles to enforcing the order.
Furthermore, a residence permit may be granted if it is of urgent
humanitarian interest for some other reason. When assessing the humanitarian
aspects, particular account shall be taken of whether the alien has been in
Sweden for a protracted period and if, on account of the situation in the
receiving country, the use of coercive measures would not be considered
possible when enforcing the refusal-of-entry or expulsion order. It shall
further be taken into account whether the alien has committed crimes and a
residence permit may be refused for security reasons. No refusal-of-entry or
expulsion order will be enforced while the case is under consideration of
the Migration Board. Decisions made by the Migration Board under Chapter 2,
Section 5 b, as amended, are not subject to appeal. Applications lodged with
the Migration Board under the new legislation, which are still pending by 30
March 2006, will continue to be handled according to the temporary
amendments of the Aliens Act. The same applies to cases that the Board has
decided to review on its own initiative.
6.4 On 31 March 2006, the complainant responded that on 18 November 2005 the
Swedish Migration Board decided to take up his case for examination under
the temporary legislation. On 3 March 2006 the Board decided not to grant a
residence permit, and to uphold the expulsion order. In the complainant's
further submission dated 12 April 2006, the complainant explained that in
the application before the Board he maintained the reasons for asylum that
he had given earlier before the Migration Board, the Aliens Appeals Board
and the Committee against Torture. He also referred to new medical evidence
of January-February 2006 which corroborated that the complainant had been in
contact with psychiatric care in Sweden since 2001 and that his initial
diagnosis was PTSD.
6.5 The Migration Board based its decision of 3 March 2006 on the grounds
that these reasons had already been taken up by the migration authorities
and that no new circumstances had emerged regarding them and the risks which
the complainant would run if he would have to return to Bangladesh. The
Board, therefore, found that he could not be granted asylum or a residence
permit as a person otherwise in need of protection. Secondly, the Board
found, based on its practice under the temporary amendments to the Act that
a single person must have been in Sweden for at least eight years before a
residence permit can be granted on those grounds, that the length of the
complainant's stay in Sweden since 2000 was not sufficient. Thirdly, the
Board found that his medical evidence did not show that he suffered from
such a serious mental illness or comparable condition that a residence
permit should be granted for medical reasons and that he could receive
adequate treatment in his home country. Therefore, no grounds existed for
granting a permit for humanitarian reasons.
6.6 The complainant submits to the Committee that on 11 January 2006 he had
been in contact with his brother in Bangladesh who informed him of the
continuing interest of the police in the complainant and his wife and
children. Allegedly, they have to move around the country to avoid the
police and militant members of the Awami League. [FN12] The complainant
refers to the U.S. Department of State and the Swedish Foreign Office's
Reports of 2005 in support of his claim that the situation regarding torture
in police jails has not improved but worsened. The complainant further
claims that restrictive practice used by the Swedish authorities regarding
the granting of a residence permit has led to unnecessary suffering on his
part and in itself constitutes a violation of article 3 or 16 of the
Convention.
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[FN12] Neither further information nor supporting documents were provided.
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Issues and Proceedings Before the Committee
Consideration of the Admissibility
7.1 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 notes that the
exhaustion of domestic remedies was not contested by the State party in its
initial submission and on 3 March 2006 a final decision on the complainant's
renewed application was reached by the State party's authorities under the
temporary amendments to the 1989 Aliens Act.
7.2 With regard to the complainant's allegation raised in the latest
submission of 12 April 2006 that the treatment that he has been subjected to
by the Swedish authorities by the restrictive practice used by them
regarding the granting of a residence permit, which leads to unnecessary
suffering on his part, in itself constitutes a violation of article 3 or 16
of the Convention, the Committee considers that the complainant has not
submitted sufficient evidence in substantiation of this claim.
7.3 Concerning the claim under article 16 relating to the complainant's
expulsion in light of his mental health, the Committee recalls its prior
jurisprudence that the aggravation of the condition of an individual's
physical or mental health by virtue of a deportation is generally
insufficient, in the absence of additional factors, to amount to degrading
treatment in violation of article 16. [FN13] The Committee notes the medical
evidence presented by the complainant demonstrating that he suffers from
PTSD, most probably as the consequences of the treatment suffered by him in
1997 and 1999. The Committee considers, however, that the aggravation of the
complainant's state of health which might be caused by his deportation is in
itself insufficient to substantiate this claim, which is accordingly
considered inadmissible.
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[FN13] Supra n.4 and supra n.6.
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7.4 As to the claim under article 3 concerning torture, the Committee
considers, particularly in light of the complainant's account of his
previous torture, that he has substantiated this claim, for purposes of
admissibility. In the absence of any further obstacles to the admissibility
of this claim, the Committee accordingly proceeds with its consideration on
the merits.
Consideration of the Merits
8.1 The issue before the Committee is whether the removal of the complainant
to Bangladesh violated the State party's obligation under article 3 of the
Convention not to expel or to return ('refouler') 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.
8.2 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 Sweden. 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.
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 would return. 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.
8.3 In assessing the risk of torture in the present case, the Committee has
noted the complainant's submission that he was twice previously tortured in
Bangladesh. However, as the State party points out, according to the
Committee's General Comment, previous experience of torture is but one
consideration in determining whether a person faces a personal risk of
torture upon return to his country of origin; in this regard, the Committee
must consider whether or not the torture occurred recently, and in
circumstances which are relevant to the prevailing political realities in
the country concerned. In the present case, the torture to which the
complainant was subjected occurred in 1997 and 1999, which could not be
considered recent, as well as in quite different political circumstances,
specifically when the BFP, a party the complainant is a member of, was in
opposition to the then ruling party, the Awami League.
8.4 The Committee has taken note of the submissions regarding the general
human rights situation in Bangladesh and the reports that torture is
widespread; however, this finding alone does not establish that the
complainant himself faces a personal risk of torture if returned to
Bangladesh. The Committee observes that the main reason the complainant
fears a personal risk of torture if returned to Bangladesh is that he was
previously subjected to torture for his membership in the BFP, and that he
risks being imprisoned and tortured upon his return to Bangladesh pursuant
to his alleged charges under the Public Safety Act.
8.5 The Committee notes that the complainant and the State party are at
considerable odds as to the extent to which the BFP can currently be
considered in opposition to the current government. However, the State
party's information on this issue is to the contrary. The Committee recalls
that in accordance with its General Comment, [FN14] it is for the
complainant to present an arguable case and to establish that he would be in
danger of being tortured and that the grounds for so believing are
substantial in the way described, and that such danger is personal and
present. In the present case, the Committee is not persuaded that the
current political situation in Bangladesh, coupled with the low alleged
level of responsibility in the BFP, place the complainant at present danger
of being tortured on the basis of membership of the BFP in a non-prominent
position.
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[FN14] Supra n.3.
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8.6 The Committee also notes that the complainant and the State party
disagree with each other over the issue of probability of obtaining a new
passport by a person against whom the charges of possession of illegal
weapons and subversive activities have been instituted by the police. In the
present case, the Committee is not in a position to deliberate on the
matter, given the fact that the complainant did not provide any documents
proving that these charges had been instituted against him either in 1997,
1999 or 2000 with the exact dates on which it had happened.
8.7 In relation to the charges which the complainant says were filed against
him under the Public Safety Act, the Committee has noted that the current
status of these charges against him remains unclear. While the State party's
argument that the Act has been repealed has not been contested by the
complainant, he doubts any cases raised on the basis of this Act had been
closed or withdrawn. In the absence of evidence indicating continued police
interest in the complainant, the Committee considers that the complainant
has not been able to substantiate his claims that the prosecution of charges
filed against him will proceed, even though the relevant legislation has
been repealed. As a consequence, it does not consider it likely that the
complainant risks detention and torture for this purpose on return.
9. 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 removal of the complainant to
Bangladesh 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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