| |
1.1 The author of the
communication is Jonny Rubin Byahuranga, a Ugandan national born on 28
October 1956, currently residing in Denmark and awaiting expulsion to
Uganda. He claims to be victim of a violation by Denmark [FN1] of articles
7, 17 and 23, paragraph 1, of the Covenant. He is represented by counsel.
-------------------------------------------------------------------------------------------------------------------------------
[FN1] The Covenant and the Optional Protocol entered into force for the
State party on 23 March 1976.
-------------------------------------------------------------------------------------------------------------------------------
1.2 On 27 November 2003, the communication was transmitted to the State
party. On 7 July 2004, the author requested the Committee to issue a request
for interim measures under Rule 86 of its rules of procedure, asking the
State party not to deport him while his communication was under
consideration by the Committee. On 9 July 2004, the Committee, through its
Special Rapporteur on New Communications, requested the State party not to
deport the author before the Committee has had an opportunity to address the
continued need for interim measures. The State party acceded to this
request. On 30 July 2004, the Committee informed the State party of its
decision to extend its temporary request not to deport the author until the
closing date of the Committee's 82nd session, i.e. 5 November 2004.
FACTS AS SUBMITTED BY THE AUTHOR
2.1 The author served as an officer in the Ugandan army during the rule of
Idi Amin. He fled Uganda in 1981, after he had been unlawfully detained and
allegedly tortured several times by military forces. In December 1984, he
entered Denmark, where he was granted asylum on 4 September 1986, under
Section 7 (1) (ii) [FN2] of the Aliens Act. On 24 July 1990, he was issued a
permanent residence permit.
-------------------------------------------------------------------------------------------------------------------------------
[FN2] Section 7 (1) of the Aliens Act then in force read: "Section 7. (1)
Upon application, a residence permit shall be issued to an alien in Denmark
or at the border, (i) if the alien falls within the provisions of the
Convention on the Status of Refugees of 28 July 1951; or (ii) if for reasons
similar to those listed in the Convention or for other weighty reasons, the
alien cannot be required to return to his country of origin."
-------------------------------------------------------------------------------------------------------------------------------
2.2 n 1997, the author married a Tanzanian national. Together with the
author's daughter from a former marriage (born in 1980), his wife united
with him in Denmark in 1998. She has meanwhile become a Danish citizen and
has two children with the author, who were born in Denmark in 1999 and 2000,
respectively.
2.3 By judgment of 23 April 2002, the Copenhagen City Court convicted the
author of drug-related offenses (Section 191 of the Danish Criminal Code),
and sentenced him to two years and six months' imprisonment. It also ordered
the author's expulsion from Denmark, [FN3] finding that such expulsion would
not amount to a violation of the right to family life under article 8 of the
European Convention, and permanently barred him from re-entering Denmark. It
based its decision on an opinion dated 19 April 2002 of the Danish
Immigration Service, which considered that there were no circumstances which
would constitute a decisive argument against the author's expulsion within
the meaning of Section 26 [FN4] of the Aliens Act. It based itself on (a)
the fact that, at the age of 45 years, the author had resided in Denmark for
17 years and four months; (b) the author's good health, i.e. the absence of
any diseases which could not be treated in Uganda; (c) the fact that his
expulsion would not affect the right of his spouse and children to continue
residing in Denmark, given that his wife and his older daughter had
meanwhile been granted permanent residence permits; (d) the absence of any
risk that, in cases other than those mentioned in Section 7 (1) and (2) of
the Aliens Act, he would be ill-treated in Uganda. The Immigration Service
did not object to the prosecutor's claim to expel the author, despite the
latter's loose ties with his Ugandan family and the fact that he had not
returned to Uganda since 1981.
-------------------------------------------------------------------------------------------------------------------------------
[FN3] Section 22 of the Aliens Act then in force read, in pertinent parts:
"Section 22. An alien who has lawfully stayed in Denmark for more than the
past seven years or an alien issued with a residence permit under sections 7
or 8 may be expelled if: [...] (iv) the alien is sentenced, pursuant to the
Drugs and Narcotics Act or pursuant to sections 191 or 191a of the Criminal
Code, to imprisonment [...]."
[FN4] Section 26 of the Aliens Act then in force read: "Section 26. (1) In
deciding on expulsion, regard must be had to the question whether the
expulsion must be presumed to be particularly burdensome, in particular
because of:
(i) the alien's ties with the Danish community [...];
(ii) the duration of the alien's stay in Denmark;
(iii) the alien's age, health and other personal circumstances;
(iv) the alien's ties with persons living in Denmark;
(v) the consequences of the expulsion for the alien's close relatives living
in Denmark;
(vi) the alien's weak or non-existing ties with his country of origin or any
other country in which he may be expected to take up residence; and
(vii) the risk that, in cases other than those mentioned in section 7 (1)
and (2), the alien will be ill-treated in his country of origin or any other
country in which he may be expected to take up residence.
(2) An alien may be expelled under section 22 (iv) to (vi) unless the
circumstances mentioned in subsection (1) constitute a decisive argument
against such expulsion."
-------------------------------------------------------------------------------------------------------------------------------
2.4 On 3 September 2002, the High Court of Eastern Denmark dismissed the
author's appeal against the decision of the Copenhagen City Court. On 12
November 2002, the Danish Board of Appeal rejected the author's application
for leave to appeal against the High Court's judgment.
THE COMPLAINT
3.1 The author claims (a) that his expulsion would amount to a violation of
his rights under article 7 of the Covenant, as it would expose him to a real
and immediate danger of being subjected to ill-treatment upon return to
Uganda; and (b) that it would constitute an arbitrary interference with his
right to family life under article 17 of the Covenant and a violation of the
State party's duty to respect and protect the family as the natural and
fundamental group unit of society, as prescribed by article 23, paragraph 1.
3.2 The author emphasizes that he has lived in Denmark for 18 years without
ever having returned to Uganda, that he has no contact with relatives in
Uganda, that his wife and children are living with him; the two youngest
children were born in Denmark and have never been to Uganda.
STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND MERITS
4.1 On 11 February 2004, the State party submitted its observations on the
admissibility and merits of the communication, challenging the admissibility
because of the author's failure to exhaust domestic remedies, and denying
violations of articles 7, 17 and 23, paragraph 1.
4.2 Regarding exhaustion of domestic remedies, the State party submits that,
on 31 July 2003, the author requested the Copenhagen police to place the
matter of revocation of the expulsion order before a tribunal, for review
under Section 50 (1) [FN5] of the Aliens Act. On 29 August 2003, the police
requested the Danish Immigration Service to provide another opinion on the
desirability of the author's expulsion. On 18 September 2003, the
Immigration Service reiterated that it was not in possession of any
information as to whether the author would be exposed to particularly
burdensome criminal sanctions upon return to Uganda, or whether he would be
at risk of double jeopardy for the same offense for which he had been
convicted in Denmark. However, it had requested the Danish Foreign Ministry
to investigate the risk of double jeopardy in Uganda. Apart from such risk,
possible grounds for asylum set out in Section 7 (1) and (2) of the Aliens
Act could not be taken into account, in accordance with Section 26 (1) (vii)
of the Act. The Immigration Service concluded that, in the light of the
nature of the offenses committed by, and the severity of the prison sentence
imposed on, the author, his personal circumstances did not outweigh the
arguments for his expulsion.
-------------------------------------------------------------------------------------------------------------------------------
[FN5] Section 50 (1) of the Aliens Act reads: "(1) If expulsion under
section 49 (1) has not been enforced, an alien claiming that a material
change in his circumstances has occurred, cf. section 26, can request that
the public prosecutor put the question of resumption [revocation] of the
expulsion order before court. A request to that effect must be submitted not
earlier than 6 months and not later than 2 months before the date when
enforcement of the expulsion can be expected. If the request is submitted at
a later date, the court may decide to examine the case if it deems it to be
excusable that the time-limit has been exceeded."
-------------------------------------------------------------------------------------------------------------------------------
4.3 The State party adds that, on 11 November 2003, the Copenhagen City
Court affirmed the expulsion order against the author, finding that its
revocation was not required under article 3 of the European Convention on
Human Rights, since the author still could invoke Section 31 [FN6] of the
Aliens Act, allowing for a further risk assessment [FN7] by the Danish
Immigration Service prior to his return to Uganda. On 1 December 20003, the
High Court of Eastern Denmark dismissed the author's appeal against the City
Court's decision. On 19 January 2004, the Danish Immigration Service, based
on information from the Foreign Ministry about an amnesty for supporters of
former President Amin and the risk of double jeopardy in Uganda, determined
that Section 31 of the Aliens Act would not preclude the author's expulsion.
The author's appeal to the Danish Refugee Board and his application to the
Board of Appeal for leave to appeal the High Court's decision of 1 December
2003, were still pending when the State party made its submission. It is
thus submitted that the communication is inadmissible under article 5,
paragraph 2 (b), of the Optional Protocol.
-------------------------------------------------------------------------------------------------------------------------------
[FN6] Section 31 of the Aliens Act reads: "(1) An alien may not be returned
to a country where he will be at risk of the death penalty or of being
subjected to torture or inhuman or degrading treatment or punishment, or
where the alien will not be protected against being sent on to such country.
(2) An alien falling under section 7 (1) may not be returned to a country
where he will risk persecution on the grounds set out in article 1 A of the
Convention on the Status of Refugees (28 July 1951), or where the alien will
not be protected against being sent on to such country. This does not apply
if the alien must reasonably be deemed a danger to national security or if,
after final judgment in respect of a particularly dangerous crime, the alien
must be deemed a danger to society, but cf. subsection (1)."
[FN7] See section 49a of the Aliens Act: "Section 49a. Prior to the return
of an alien who has been issued a residence permit under sections 7 or 8 and
who has been expelled by judgment [...], the Danish Immigration Service
decides whether the alien can be returned, cf. section 31, unless the alien
consents to his return. [...]."
-------------------------------------------------------------------------------------------------------------------------------
4.4 On the merits, the State party submits that the procedure before the
Danish courts and immigration authorities ensures that a person will not be
expelled to a country where he or she would face a real risk of being
subjected to torture or to cruel, inhuman or degrading treatment or
punishment. The Danish Immigration Service, both in its opinions dated 19
April 2002 and 18 September 2003, and in its risk assessment under Section
31 of the Aliens Act, carefully examined the author's risk of being
subjected to ill-treatment. It concluded that his expulsion would not
contravene Sections 26 or 31 of the Aliens Act. The latter reflects
Denmark's obligations under article 3 of the European Convention on Human
Rights and hence article 7 of the Covenant. The State party concludes that
the author's expulsion would be compatible with article 7 of the Covenant.
4.5 While conceding that the author's expulsion constitutes an interference
with his right to family life under article 17, the State party argues that
this interference is provided for by law, is in accordance with the
provisions, aims and objectives of the Covenant, and reasonable in the
circumstances of the case, given that it was based on the author's
conviction for a particularly serious offense. The State party invokes its
right to control the entry and residence of aliens, which included a right
to expel persons convicted of criminal offenses, insofar as such expulsion
was not arbitrary but proportionate to the legitimate aim pursued. For the
State party, the author's expulsion would not constitute an unreasonable
hardship for his wife and oldest daughter, who both only had minor ties with
Denmark and could therefore reasonably be expected to accompany the author.
Conversely, if they prefer to stay in Denmark, their right of residence
would not be affected by the author's expulsion, as they were both issued
permanent residence permits.
4.6 The State party argues that, while constituting an interference with
article 23, paragraph 1, of the Covenant, the author's expulsion would not
violate that provision, since nothing prevented his wife, a Tanzanian
national, their children, or his oldest daughter from continuing their
family life with the author in Tanzania or elsewhere outside Denmark.
5. On 17 March 2004, the State party informed the Committee that, by
decision of 17 February 2004, the Board of Appeal dismissed the author's
application for leave to appeal against the High Court's decision of 1
December 2003.
AUTHOR'S REQUEST FOR INTERIM MEASURES
6.1 On 7 and 9 July 2004, the author requested the Committee to seek the
State party's assurance that he will not be expelled to Uganda while his
communication is under consideration by the Committee, where he would risk
suffering irreparable harm, due to his former position as lieutenant during
the rule of Idi Amin.
6.2 The author submits that, by decision of 28 June 2004, the Danish Refugee
Board dismissed his appeal against the decision of the Danish Immigration
Service dated 19 January 2004, on the ground that he would risk no harm upon
return to Uganda. On 6 July 2004, the police formally notified him of this
decision, and informing him that he would be deported without delay.
6.3 The author argues that he was an outspoken critic of the present Ugandan
government during his time in Denmark and that he participated in
conferences, where he protested against Uganda's treatment of political
opponents. He identifies several current Ugandan military and government
officials whom he fears particularly.
6.4 In support of his claim, the author refers to reports from
non-governmental and governmental sources, which confirm the continued
occurrence of extrajudicial killings, torture and arbitrary detention of
political opponents or suspected rebel supporters in Uganda. By reference to
the Committee's jurisprudence, he argues that his immediate expulsion from
Denmark would render examination of his communication by the Committee moot.
STATE PARTY'S ADDITIONAL SUBMISSION AND AUTHOR'S COMMENTS
7. On 15 July 2004, the State party conceded that the author has exhausted
domestic remedies, after his appeal against the decision of 19 January 2004
of the Danish Immigration Service was dismissed by the Immigration Board on
28 June 2004. A subsequent request to the Minister for Refugees, Immigration
and Integration to grant him a residence permit on humanitarian grounds,
pursuant to Section 9b (1) of the Aliens Act, was rejected on 9 July 2004,
as such a permit could, at the earliest, be granted two years after an
applicant's departure from Danish territory.
8. On 21 July 2004, the author observed that the State party had not
addressed the risk of irreparable harm that he would face upon return to
Uganda. In support of his claims, he submits a letter dated 14 July 2004
from the former chairman of the Schiller Institute in Denmark, who confirms
that the author participated in conferences of the Institute in his capacity
as chairman of the Ugandan Union in Denmark. His participation in a
September 1997 conference, during which Ugandan President Museveni's alleged
links with the Rwandan Patriotic Front were criticized, was documented in an
article published in the Executive Intelligence Review on 10 October 1997,
as well as in a German-language newspaper. The letter expresses concern that
the Ugandan Embassy in Copenhagen may have registered Ugandan citizens who
participated in the Schiller Institute's conferences.
AUTHOR'S COMMENTS ON THE STATE PARTY'S OBSERVATIONS ON ADMISSIBILITY AND
MERITS
9.1 On 26 August 2004, the author commented on the State party's
admissibility and merits submissions of 11 February and 15 July 2004,
reiterating that he has exhausted domestic remedies. He submits that the
letter from the Schiller Institute clearly shows that the Ugandan
authorities are aware of his political activities, on the basis of the lists
of participants of the conferences he attended, which are also available
online. While claiming that the danger he faces upon return to Uganda is
real and a necessary and foreseeable consequence of deportation, the author
criticizes that the State party failed to address the evidence he had
submitted.
9.2 By merely relying on the risk assessments conducted by the Danish
Immigration Service on 19 April 2002 and 18 September 2003, under Sections
50 and 26 of the Aliens Act, the State party ignored the fact that a
substantial part of the author's article 7 complaint was based on
information obtained after the risk assessments. In the absence of a
response from the State party to his specific submissions, considerable
weight should be given to these uncontested submissions, given that the
State party had the opportunity to investigate his allegations thoroughly.
It had not shown that the circumstances in Uganda had changed fundamentally,
so as to render the reasons for granting him asylum, in 1986, obsolete.
9.3 In support of his claims under articles 17 and 23, the author reiterates
that he and his wife have two children who were both born and raised in
Denmark, speak Danish and consider Denmark as their home. The State party's
failure to address this aspect could not change the importance which the
Committee should accord to their upbringing in a stable and reliable
environment, especially if articles 17 and 23 of the Covenant are
interpreted in the light of articles 9 and 16 of the Convention on the
Rights of the Child. His important role in the lives of the two children is
reflected in several reports on family visits during prison leave; the
reports record the happiness of the children to see their father.
9.4 On 6 August 2004, the Copenhagen City Court decided to release the
author, thereby implicitly acknowledging his close family ties, as well as
the hardship that the 11 months in custody on remand pending deportation
after the end of his prison sentence constituted for him and his family. He
argues that enabling him to resume his family life for a few months, during
which he may look after his children while his wife works, only to
eventually deport him to Uganda, would amount to a severe infringement of
his rights under articles 17 and 23.
9.5 Regarding the State party's argument that nothing prevents his family
from continuing to live together outside Denmark, the author submits that
his wife would not be able to follow him to a country without any job
opportunities or any prospects for schooling and day-care institutions for
her children.
9.6 The author adds that the possibility of his resettling in Tanzania, as
proposed by the State party, is not a realistic option, since that country
is under no obligation to receive him, and most likely reluctant to accept a
non-national who had been convicted of a criminal offense. Despite
occasional visits to Tanzania, he has no ties to that country.
9.7 The author reiterates that he has no contact with any family members in
Uganda. His tribe members, the Toros, were likely to treat him as an outcast
or to kill him, because of his service in the army of Idi Amin, who had
oppressed the Toros.
9.8 The author recalls that the May 2002 judgment of the Copenhagen City
Court was not unanimous with regard to his expulsion, as one of the three
judges considered his expulsion incompatible with article 8 of the European
Convention on Human Rights. In a case similar to this, involving the
deportation of a foreign national who had lived in Denmark for a number of
years together with his wife, and who also had been ordered deported on the
basis of a conviction for drug related offenses, the European Court of Human
Rights had found a violation of article 8 of the Convention. [FN8]
-------------------------------------------------------------------------------------------------------------------------------
[FN8] European Court of Human Rights, Application No. 56811/00 (Amrollahi v.
Denmark), Judgment of 11 July 2002.
-------------------------------------------------------------------------------------------------------------------------------
9.9 The author argues that, in the light of the length of his stay in
Denmark and his family's interest to continue living together, the State
party's decision to deport him must be considered disproportionate to the
aim pursued, despite the relatively serious nature of his conviction. By
reference to the Committee's jurisprudence, [FN9] he concludes that the
expulsion order against him constitutes arbitrary interference with his
rights under article 17 and 23.
-------------------------------------------------------------------------------------------------------------------------------
[FN9] See Communication No. 1069/2002, Bakhkiyari v. Australia, Views
adopted on 29 October 2003, at para. 9.6.
-------------------------------------------------------------------------------------------------------------------------------
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
CONSIDERATION OF ADMISSIBILITY
10.1 Before considering any claim contained in a communication, the Human
Rights Committee must, in accordance with rule 87 of its rules of procedure,
decide whether or not the communication is admissible under the Optional
Protocol to the Covenant.
10.2 The Committee has ascertained, in accordance with article 5, paragraphs
(a) and (b), of the Optional Protocol, that the same matter is not being
examined under another international procedure of investigation or
settlement, and that the author has exhausted domestic remedies, as conceded
by the State party.
10.3 The Committee considers that the author has sufficiently substantiated
his claims under articles 7, 17 and 23, paragraph 1, for purposes of
admissibility. It concludes that the communication is admissible and
proceeds to an examination on the merits.
CONSIDERATION OF THE MERITS
11.1 The Human Rights Committee has considered the present communication in
light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
11.2 The first issue before the Committee is whether the author's expulsion
to Uganda would expose him to a real and foreseeable risk of being subjected
to treatment contrary to article 7. The Committee recalls that, under
article 7 of the Covenant, States parties must not expose individuals to the
danger of torture or cruel, inhuman or degrading treatment or punishment
upon return to another country by way of their extradition, expulsion or
refoulement. [FN10] It takes note of the author's detailed account as to why
he fears to be subjected to ill-treatment at the hands of the Ugandan
authorities, and concludes that he has made out a prima facie case of such a
risk.
-------------------------------------------------------------------------------------------------------------------------------
[FN10] General Comment 20 [44], at para. 9.
-------------------------------------------------------------------------------------------------------------------------------
11.3 The Committee observes that the State party, while challenging the
author's claim under article 7, does not submit any substantive grounds for
its position. Instead, it merely refers to the risk assessments of the
Danish Immigration Service under articles 26 (opinions dated 19 April 2002
and 18 September 2003) and 31 (decision of 19 January 2004, as affirmed by
the Danish Refugee Board on 28 June 2004) of the Aliens Act. After an
examination of the documents, the Committee notes, firstly, that the
Immigration Service's scrutiny under article 26 (1) (vii) of the Aliens Act
was limited to an assessment of the author's personal circumstances in
Denmark, as well as his risk of being subjected to punishment for the same
offense for which he had been convicted in Denmark, without addressing the
broader issues under article 7 of the Covenant, such as ill-treatment which
may give rise to an asylum claim under article 7 (1) and (2) of the Aliens
Act. Secondly, in its decision of 19 January 2004, the Immigration Service
merely relies on an assessment made by the Ministry for Foreign Affairs
concerning the risk of double jeopardy in Uganda and an amnesty for
supporters of former President Amin to conclude that the author would not
face a risk of being tortured or ill-treated upon return to Uganda.
Similarly, the Refugee Board, after giving a detailed account of the
author's statements as to his fear of being subjected to ill-treatment upon
return to Uganda, dismissed his appeal on the basis of the same opinion by
the Ministry, without providing any substantive reasons of its own, in its
decision of 28 June 2004. In particular, the Board merely dismissed, because
of late submission, the author's claim that his political activities in
Denmark were known to the Ugandan authorities, thereby placing him at a
particular risk of being subjected to ill-treatment upon return to Uganda.
The State party has not furnished the Committee with the opinion of its
Ministry for Foreign Affairs or with other documents that would make out the
factual basis for the Ministry's assessment. In sum, before the Committee
the State party seeks to refute the alleged risk of treatment contrary to
article 7 merely by referring to the outcome of the assessment made by its
own authorities, instead of commenting the author's fairly detailed account
on why such a risk in his opinion exists.
11.4 In the light of the State party's failure to provide substantive
arguments upon which the State party relies to rebut the author's
allegations, the Committee finds that due weight must be given to his
detailed account of the existence of a risk of treatment contrary to article
7. Consequently, the Committee is of the view that the expulsion order
against the author would, if implemented by returning him to Uganda,
constitute a violation of article 7 of the Covenant.
11.5 As to the alleged violation of the author's right to family life under
articles 17 and 23, paragraph 1, the Committee reiterates its jurisprudence
that there may be cases in which a State party's refusal to allow one member
of a family to remain in its territory would involve interference in that
person's family life. However, the mere fact that one member of the family
is entitled to remain in the territory of a State party does not necessarily
mean that requiring other members of the family to leave involves such
interference. [FN11]
-------------------------------------------------------------------------------------------------------------------------------
[FN11] Communication No. 930/2000, Winata v. Australia, Views adopted on 26
July 2001, at para. 7.1; Communication No. 1011/2001, Madafferi v.
Australia, Views adopted on 26 July 2004, at para. 9.7.
-------------------------------------------------------------------------------------------------------------------------------
11.6 In the present case, and as the State party has conceded that the
author's removal would constitute an interference with his family life, the
Committee considers that a decision by the State party to deport the father
of a family with two minor children and to compel the family to choose
whether they should accompany him or stay in the State party is to be
considered "interference" with the family. Although the author's life with
his family was interrupted for a considerable period of time because of his
incarceration and subsequent custody on remand pending deportation, he
received regular visits from his wife during that period and was able to
visit his children several times during prison leave. Moreover, he resumed
his family life after the Copenhagen City Court's decision to release him on
6 August 2004.
11.7 The issue therefore arises whether or not such interference would be
arbitrary or unlawful and thus contrary to article 17, read in conjunction
with article 23, paragraph 1, of the Covenant. The Committee observes that
the author's expulsion was based on Section 22 of the Aliens Act. However,
it recalls that even interference provided for by law should be in
accordance with the provisions, aims and objectives of the Covenant and
should be reasonable in the particular circumstances. [FN12] In this regard,
the Committee reiterates that in cases where one part of a family must leave
the territory of the State party while the other part would be entitled to
remain, the relevant criteria for assessing whether or not the specific
interference with family life can be objectively justified must be
considered, on the one hand, in light of the significance of the State
party's reasons for the removal of the person concerned and, on the other,
the degree of hardship the family and its members would encounter as a
consequence of such removal. [FN13]
-------------------------------------------------------------------------------------------------------------------------------
[FN12] General Comment 16 [32], at para. 4
[FN13] See Communication No. 1011/2001, Madafferi v. Australia, Views
adopted on 26 July 2004, at para. 9.8.
-------------------------------------------------------------------------------------------------------------------------------
11.8 The Committee notes that the State party justifies the author's removal
(a) by the fact that he was convicted of drug-related offenses, and (b) on
the assumption that the serious nature of these offenses is reflected by the
length of the prison sentence imposed on him. It also takes note of the
author's argument that his wife and children live in Denmark under stable
and reliable conditions and would, therefore, not be able to follow him, if
he were to be expelled to Uganda. While it may well be that the author's
expulsion would constitute a considerable hardship for his wife and
children, whether they remain in Denmark, or whether they decide to avoid
separation of the family by following the author to a country they do not
know and whose language the children do not speak, the Committee notes that
the author has submitted the communication solely in his own right and not
on behalf of his wife or children. It follows that the Committee can only
consider whether the author's rights under articles 17 and 23 would be
violated as a result of his removal.
11.9 In the present case, the Committee notes that the State party has
sought to justify its interference with the author's family life by
reference to the nature and severity of the author's offenses. The Committee
considers that these reasons advanced by the State party are reasonable and
sufficient to justify the interference with the author's family life. The
Committee therefore concludes that the author's expulsion, if implemented by
returning him to Uganda, would not amount to a violation of his rights under
articles 17 and 23, paragraph 1.
12. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, is of the view that the author's expulsion to Uganda would, if
implemented, violate his rights under article 7 of the Covenant.
13. In accordance with article 2, paragraph 3 (a), of the Covenant, the
State party is under an obligation to provide the author with an effective
remedy, including revocation and full re-examination of the expulsion order
against him. The State party is also under an obligation to prevent similar
violations in the future.
14. Bearing in mind that, by becoming a State party to the Optional
Protocol, the State party has recognized the competence of the Committee to
determine whether there has been a violation of the Covenant or not and
that, pursuant to article 2 of the Covenant, the State party has undertaken
to ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the Covenant, the Committee wishes to
receive from the State party, within 90 days, information about the measures
taken to give effect to its Views. The State party is also requested to
publish the Committee's Views.
__________________________________
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic, Chinese and Russian as
part of the Committee's annual report to the General Assembly.]
The text of an individual opinion signed by Committee members Ms. Ruth
Wedgwood and Mr. Maxwell Yalden is appended to the present document.
INDIVIDUAL OPINION OF COMMITTEE MEMBERS MS. RUTH WEDGWOOD AND MR. MAXWELL
YALDEN (DISSENTING)
The majority concludes that Denmark has failed adequately to support its
decision to deport the author, a Ugandan citizen, following his conviction
for drug-related criminal offences and a prison sentence of 2 years, six
months. The majority finds that the author, who was a former member of Idi
Amin's armed forces, has shown a "prima facie" case that he would risk
torture or other mistreatment in Uganda upon his return, and that the State
party has not rebutted it.
States parties have a duty to observe the international legal requirements
of non-refoulement. The general circumstances in Uganda are not reassuring.
In the Human Rights Committee's recent review of Uganda's country report
under the Covenant, for example, the Committee noted a "widespread practice
of torture and ill-treatment" of persons in detention. (Concluding
Observations on Uganda, May 5, 2004, at para. 17.) The State party would
therefore wish to give careful consideration to the dangers claimed by the
author.
Nevertheless, the Committee cannot sit in review of the facts and evidence
de novo in each deportation case, especially where a case turns upon an
evaluation of a complainant's credibility. The Committee has therefore been
obliged to examine the documents available to it. The State party's response
in this case describes the lengthy review of the author's status by the
national authorities. This has included information obtained from the
Foreign Ministry, and three reviews by the Danish Immigration Service, as
well as decisions of the Copenhagen City Court, the High Court of Eastern
Denmark, and the Danish Board of Appeal. The 28 June 2004 decision of the
Danish Refugee Board was also submitted to the Committee by the author's
counsel, though counsel chose not to provide a translation, leaving it
available only to those few members of the Committee who might be able to
read Danish.
The State party has assured the Committee that it is "at the disposal of the
Secretary-General of the United Nations should this pleading or the case in
general give rise to any questions." (State party's observations of 11
February 2004 on admissibility and merits, at p. 1.) The Committee is able
to pose written requests to States parties, as well as to complainants. If
the Committee had wished to have the author's full immigration file or any
other documents within it, it could easily have asked the State party.
Denmark has been wholly cooperative with the Committee while this complaint
was pending, holding in abeyance the author's deportation at the Committee's
request, and releasing him on parole to his family. The Committee has not
ordinarily asked to see a foreign ministry's telex traffic, when presented
with reasoned opinions, and it is doubtful that many States would agree to
provide confidential material of this nature. But the Committee is certainly
able to ask for the documents that it finds necessary for an evaluation,
instead of deciding a case irrevocably on an incomplete record.
At a minimum, the Committee should have given the State party an opportunity
to provide any additional documents it wished to inspect. And we believe
that this requirement has not been met. It is true that, in the absence of
any cooperation and provision of information by a State party, the Committee
may, as appropriate, decide to give "due weight" to an author's allegations,
and may proceed to find a violation on that basis. However, this conclusion
is not warranted in the present case, where the State party, as noted above,
made an effort to cooperate with the Committee, and could readily have been
asked to provide further relevant information.
The Committee has a clear duty to respect a standard of fairness that
entails not only being fair to both parties but being seen to be fair, and
we believe that standard has not been respected. We therefore cannot agree
that the conclusion of a violation of the Covenant can be sustained in the
present case.
[Signed] Ruth Wedgwood
[Signed] Maxwell Yalden
[Done in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.] |
|
