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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. 265/2005, submitted to
the Committee against Torture by A. H. 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 decision under article 22, paragraph 7, of the
Committee against Torture.
1.1 The complainant is A. H., an Azeri national born in 1971, currently
detained in Sweden awaiting deportation to Azerbaijan. He claims that his
return would constitute a violation of article 3 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. He is
represented by counsel. The Convention entered into force for Sweden on 26
June 1987.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 8 February
2006. Pursuant to rule 108, paragraph 1, of the Committee's rules of
procedure, the State party was requested not to expel the complainant to
Azerbaijan while his case was pending before the Committee. The State party
acceded to such request.
The Facts as Presented by the Complainant
2.1 The complainant belongs to the Talysh minority group in Azerbaijan.
After his graduation in mechanical engineering in Russia and upon completion
of his military service in Germany, he joined the Talysh separatist movement
lead by Alakram Hummanov, which strived to establish a Talysh republic. In
1994, he left this group and moved to Baku, where he lived until he fled to
Sweden.
2.2 The complainant declares to have been an active member of the
Azerbaijani Democratic Party (ADP), a registered opposition party to the
current regime. He contends that his political activities were carried out
in the district of Khatai and included, among others, organising
demonstrations against the regime. He claims to have been seen on television
on several occasions in the framework of these activities.
2.3 In 2001, the complainant was summoned by the police in several occasions
and interrogated about the leader of the Talysh separatist movement,
Hummatov. On 15 June 2001, policemen dressed in plainclothes searched the
complainant's home in Baku and seized some documents and recordings. He was
arrested and taken to premises of the Ministry of National Security in Baku,
where he was repeatedly beaten. He was then taken to a "police house" and
locked in a cell in the basement, where he was kept for approximately a
year. He contends that, during his detention, he was beaten on numerous
occasions and that he was not allowed to go out or speak to anyone and was
never informed of the duration of his detention. He further contends that
his case was never tried by a court and that no lawyer was appointed to him.
2.4 In May 2002, he fell ill and was brought to a KGB hospital, which also
treated prisoners. The complainant states that, while he was in hospital,
his father and the secretary general of the ADP, Sardar Jalaloglu, organised
his escape and obtained, through bribery, a party membership card and a
driver's license in his name. A visitor delivered these documents to the
complainant.
2.5 On the 14 November 2002, the complainant walked out of hospital dressed
in military clothes, with the help of a soldier connected to Jalaloglu,
while guards were busy with phone calls and visitors. That night he crossed
the Azeri border to the Russian region of Dagestan. He arrived in Sweden via
Kaliningrad on 19 November 2002, with a forged Dutch passport. The day after
his arrival, he applied for asylum.
2.6 By decision of 4 July 2003, the Swedish Migration Board ("Migrationsverket")
rejected the complainant's application. The Board denied the existence of
pronounced discrimination against Talysh population in Azerbaijan and
questioned the complainant's credibility as to how he had managed to escape
from hospital and how his driver's licence had been issued.
2.7 On 8 July 2003, the complainant appealed to the Aliens Appeals Board. On
10 October 2003, this Board received a letter from the German authorities,
in reply to a request for information made under the Dublin Convention,
where it was stated that the complainant had applied for asylum in Germany
on 25 July 1995.
2.8 On 10 October 2003 and 3 March 2004, the complainant presented
submissions to the Board, enclosing medical reports from the Crisis and
Trauma Centre at Danderyd hospital, issued on 18 and 19 February 2004,
respectively. These reports confirmed that he had been subjected to acts of
torture as described by him, including systematic beatings, electroshocks
and sitting on iron bars for a long time. It concluded that the
complainant's scars and injuries corresponded to acts of torture suffered in
2001.
2.9 In a further submission to the Board, on 17 December 2004, the
complainant stated that his brother had arrived in Sweden and applied for
asylum and that Jalaloglu had been arrested in Azerbaijan and the
complainant, among others, was being searched by the Azerbaijani
authorities. A wanted notice, including a photo of the complainant, had been
issued by the Ministry of Internal Affairs, Department of Criminal
Investigations of Baku, and posted at police stations around Baku. He was
allegedly accused of "belonging to the ADP and of having left the country
and instigating rebellion for having disseminated oppositional ideas". He
contended that his brother had informed him that their father had also been
arrested in Baku two months after the complainant's departure from
Azerbaijan.
2.10 On 4 February 2005, the Aliens Appeals Board rejected the complainant's
appeal. While it accepted that the complainant had been imprisoned and
subjected to torture as indicated in the medical reports, it considered that
"these incidents could not be attributed to Azeri authorities but should be
viewed as criminal acts performed by certain individuals overstepping their
powers." It further questioned the duration of the complainant's detention
and the circumstances of his escape and found that he had not been able to
demonstrate neither that he was wanted on political grounds nor that he had
been politically active at such high level that he would risk being
persecuted by Azeri authorities.
The Complaint
3. The complainant maintains that if he were to be returned to Azerbaijan,
he would risk detention and torture again, on grounds of his tight
connection with the ADP and especially considering that a wanted notice has
been issued and distributed in police stations around Baku. He submits that
the current political situation in Azerbaijan is particularly tense due to
the parliamentary elections of 6 November 2005. In this regard, over 300
opposition activists, inter alia from the ADP, were arrested on 21 May 2005
in an attempt to crush political opposition. In light of the facts and the
evidence submitted, the complainant claims that his deportation to
Azerbaijan would constitute a violation of article 3 of the Convention.
State Party's Submissions on Admissibility and Merits of the Complaint
4.1 By letter of 10 May 2005, the State party contests the admissibility of
the communication, arguing that it does not meet the basic level of
substantiation required for the purposes of admissibility. On a subsidiary
basis, it claims that the case is without merit. It argues that, although
numerous human rights abuses are still being reported, Azerbaijan has made
some progress towards improving the human rights situation since it became a
member of the Council of Europe and has signed major international and
European human rights treaties. In particular, the State party notes that
some political prisoners have been released, including Hummatov, the leader
of the former Talysh separatist group. Therefore, the human rights situation
in Azerbaijan in itself does not suffice to conclude that the complainant's
forced return would violate article 3.
4.2 The State party further contends that the national authorities are best
positioned to assess the author's credibility. The Migration Board held two
interviews with the complainant and concluded that, while his statements
relating to his personal circumstances and his membership in the Khatai
branch of the ADP were confirmed as correct by the Swedish Embassy in
Ankara, other statements were not considered credible. The State party notes
that, although the complainant's ADP membership card and his driver's
license were considered valid, the way in which these documents were
delivered to the complainant was not credible. The State party notes that
the secretary-general of the ADP, Jalaloglu, who had allegedly helped the
author to escape from hospital, later declared that he did not know the
author. According to the Embassy's interpreter, the wanted notice is false
and only consists of a "chaotic composition of words full of mistakes". It
adds that, according to the information obtained from the Ministry of
Internal Affairs, the complainant has never been subject to any criminal
investigations nor has he been imprisoned.
Complainant's Comments on State Party's Observations
5.1 By letter of 14 July 2005, the complainant submits that he encountered
difficulties during interviews with the Swedish Migration Board, due to the
fact that the first interview was conducted without an interpreter. He
therefore acknowledges that some minor contradictions may have arisen. In
particular, he did not understand whether he had previously applied for
asylum in a State party to the Dublin convention. He confirms that he
applied for asylum in Germany in 1995, where he stayed for six months, and
that he returned to Azerbaijan before any decision had been adopted by the
German authorities.
5.2 He questions the way in which the Swedish government obtained
Jalaloglu's declarations, especially considering that he was in prison at
the time where the investigations were carried out. He reiterates that he
knew Jalaloglu personally and that it was precisely him who had helped him
to escape from hospital, through a soldier connected to Jalaloglu. He
insists that both his driver's licence and ADP membership card could be
obtained through bribery, with Jalaloglu's help. He claims that Azerbaijan
is a corrupt country and that bribery is common.
5.3 He notes that, as his imprisonment was illegal, it is unlikely that
Azeri authorities would acknowledge that he had ever been imprisoned. As to
the wanted notice, the complainant insists that it is a genuine document
issued by the Ministry of Internal Affairs and containing his photo,
probably obtained from an old passport.
5.4 He concludes that, on account of his tight link with the ADP and his
past record of imprisonment and torture, he would be detained and tortured
if returned to Azerbaijan, especially since he has information about the
persons that detained him in 2001.
Additional Comments by the State Party on the Author's Comments
6.1 By letter of 28 September 2005, the State party states that the Azeri
administration is bureaucratic and prefers to register a person detained on
false charges than to keep him secretly detained without any record of his
detention. In this regard, it states that there are no reasons to doubt the
information obtained from the Ministry of Internal Affairs of Azerbaijan.
6.2 It further maintains that the Swedish Embassy is assisted, in
investigations, by people who are well acquainted with the Azeri judicial
system and have contacts with the relevant authorities, including the
Ministry of Internal Affairs. One of these persons allegedly met Jalaloglu
personally, who declared that he did not know the complainant.
6.3 By letter of 16 November 2005, the State party submits that, since a new
remedy to obtain a residence permit came 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 had 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.
6.4 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 long time 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. Further special
considerations shall be given to a child's social situation, his or her
period of residence in and ties to the State party, and the risk of causing
harm to the child's health and development. It shall further be taken into
account whether the alien has committed crimes and a residence permit may be
refused for security reasons.
6.5 No expulsion order will be enforced while a case is still 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 1989 Aliens Act. The same
applies to cases that the Board has decided to review on its own initiative.
6.6 By letter of 29 March 2006, the State party informs the Committee that,
after having examined whether the complainant qualified for a residence
permit in Sweden under the abovementioned temporary amendments, the Swedish
Migration Board found, by decision of 3 March 2006, that the complainant was
not entitled to such a permit.
Additional Comments by the Complainant on the State Party's Submission
7. By letter of 11 April 2006, the complainant notes that the State party
has not provided sufficient information on how the Swedish Embassy in Ankara
carried out its investigation. It further notes that there is a risk that
his identity as an asylum seeker in Sweden was disclosed to the Azeri
authorities. He adds that his wife and two sons live under very poor
conditions in Baku and suffer reprisals from the Azerbaijani authorities.
Additional Submissions From the State Party
8. On 5 July 2006, the State party provides the Committee with a translation
of the wanted notice. It notes that the author submitted this document
incomplete to the Swedish Migration Board and that, therefore, it has not
been able to provide a full copy of this document.
Additional Comments by the Complainant on the State Party's Submission
9.1 By letter of 14 July 2006, the author stresses that the State party has
confirmed his being a member of the Khatati branch of ADP. He notes that the
membership card produced was also confirmed to be valid by the State party.
This card was however issued while he was at hospital, with the help of
Sadar Jalaloglu and his father. He contends that it was not difficult to
obtain such a card with Jalaloglu's help. The author received this card just
before fleeing to Sweden. He adds that he is well acquainted with Jalaloglu,
who is a good friend of his father. He met Jalaloglu several occasions
through his father and he has even a dedicated book by him. He contends that
he has been in contact with Jalaloglu, who acknowledged that he was
questioned by Azerbaijani police and denied knowing him because Jalaloglu
himself was in trouble with the authorities and did not want to worsen his
situation.
9.2 The author notes that, according to the interpreter of the Swedish
Embassy in Ankara, the wanted notice was incomprehensible. However, this
notice has in fact been translated and seems both logic and comprehensible.
Additional Submissions From the State Party
10. On 28 September 2006, the State party notes that, in order to obtain a
translation of the notice, it requested assistance from the Swedish Embassy
in Ankara. This embassy reported that, for the purposes of investigating
matters relating to Azerbaijan, it generally engages an international
organisation operating in Baku. This organisation has in turn several legal
consultants linked to its office, who can provide information obtained from
Azerbaijani authorities. The investigations of the Embassy undertaken with
the assistance of legal consultants lead to considering the wanted notice as
a false document. It reiterates that it consists of a "composition of words
that is void of meaning" and that no information has been found with the
relevant national authorities to corroborate that the author has been
charged with a criminal offence. It adds that it has not been possible to
find a second page of the document because it is false and that, in any
case, the burden of proof relies on the author, who should be the one to
produce a full copy of this document. It adds that the English translation
of the notice does not offer support to the complainant's claim that he is
wanted in Azerbaijan for being a Talysh member of ADP, having left the
country illegally and instigating rebellion.
Issues and Proceedings Before the Committee
11.1 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. In the present case the Committee
further notes that domestic remedies have been exhausted since the decision
adopted by the Swedish Migration Board on 3 March 2006 under the temporary
amendments, and that the complainant has sufficiently substantiated his
claim for purposes of admissibility. Accordingly, the Committee finds the
complaint admissible and proceeds to its consideration of the merits.
11.2 The issue before the Committee is whether the complainant's removal to
Azerbaijan would constitute a violation of the State party's obligation,
under article 3 of the Convention, not to expel or return a person to a
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
11.3 In assessing whether there are substantial grounds for believing that
the complainant would be in danger of being subjected to torture if returned
to Azerbaijan, the Committee must take account of all relevant
considerations, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. However, the aim of such an
analysis is to determine whether the complainant runs a personal risk of
being subjected to torture in the country to which he would be returned. It
follows that the existence of a pattern of gross, flagrant or mass
violations of human rights in a country does not as such constitute
sufficient reason for determining that a particular person would be in
danger of being subjected to torture on return to that country; additional
grounds must be adduced to show that the individual concerned would be
personally at risk. Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances.
11.4. The Committee recalls its General Comment No. 1, on the implementation
of article 3, that "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).
11.5 The Committee notes that the State party has questioned the author's
credibility with regard to his position within ADP, his imprisonment and the
State party's responsibility for his torture, based on expert evidence
obtained by its consular services in Ankara. This evidence included, inter
alia, an interrogation of the ADP leader, Sardar Jalaloglu, while at prison,
who declared not to know the author. The State party has further questioned
the authenticity of the wanted notice allegedly issued by the Ministry of
Internal Affairs, an incomplete copy of which was submitted by the
complainant to the Swedish Migration Board.
11.6 Bearing in mind the above and in light of first hand information before
the Committee, it notes that, although it is undisputed that the complainant
was a member of ADP and that he was subjected to acts of torture in 2001 and
2002 as confirmed by the medical reports submitted by him, he has failed to
provide evidence about his high position within the party or the conduct of
any political activity of such significance that he would face foreseeable,
real and personal risk of being subjected to torture upon his return to
Azerbaijan. The Committee further notes that the author has not been able to
provide, as requested by the Committee, a full copy of the wanted notice
presented to the Swedish Migration Board. Additionally, it notes that the
notice presents numerous incoherences and does not reveal, in any case, that
the complainant is being searched in Azerbaijan. The Committee considers
that the complainant has failed to disprove the State party's findings in
this regard, and to validate the authenticity of the document in question.
It recalls its jurisprudence that it is for the complainant to collect and
present evidence in support of his account of events. [FN1]
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[FN1] Vid. S.L. v Sweden, Communication No. 150/1999, Views adopted on 11
May 2001, para.6.4 ; and M.Z. v Sweden, Communication No. 256, Views adopted
on 17 May 2006, para. 9.5.
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11.7 With regard to the general human rights situation in Azerbaijan, the
Committee takes note of the State party's argument that, although human
rights abuses are still being reported in Azerbaijan, this country has made
some progress towards improving the human rights situation since it joined
the Council of Europe and that efforts are being made towards releasing
political prisoners.
11.8 In light of all the above, the Committee is not persuaded that the
complainant would face a real, personal, and foreseeable risk of torture if
deported to Azerbaijan.
12. 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
Azerbaijan 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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