Communication No. 121/1998
Submitted
by: S. H. (name withheld) [represented by counsel]
Alleged
victim: The author
State
party: Norway
Date of
communication: 23 October 1998
The Committee
against Torture, established under Article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
Meeting
on 19 November 1999
Adopts
the following:
Decision on admissibility
1.1 The author of the communication is S. H., an Ethiopian citizen
born in 1965 currently residing in Norway, where he has applied for
asylum. His application, however, has been rejected and he is at risk
of expulsion. He alleges that his forced return to Ethiopia would
constitute a violation by Norway of article 3 of the Convention. He
is represented by counsel.
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
the communication to the State party on 19 November 1998. At the same
time the State party was requested, pursuant to rule 108, paragraph
9, of the Committee's rules of procedure, not to expel S. H. to Ethiopia
while his communication was under consideration by the Committee.
In a submission of 19 January 1999 the State party informed the Committee
that S. H. would not be deported to his country of origin until further
notice.
The
facts as submitted by the author
2.1 The author
belongs to the Amhara ethnic group. In 1991 his father, a doctor,
disappeared after having been arrested and has not been seen again.
The author believes that his father's arrest and disappearance were
due to his ethnic background and accusations that he was a supporter
of the Mengistu regime. In 1993 the author joined the All-Amhara People's
Organization (AAPO) (1)
. By then
he was working as an agriculture adviser in Debre Birhan, an Amhara
district. Within the AAPO he was entrusted with two kinds of activities:
on the one hand, propaganda and recruitment and, on the other hand,
smuggling weapons, organizing attacks to capture weapons and making
arrangements for their distribution.
2.2 In 1995
the author was arrested by the security forces during a clandestine
meeting he had organized near Debre Birhan. Two days later he was
taken to a secret detention centre where he was heavily tortured.
After nine months in detention his family bribed a guard who helped
him to escape. He stayed in hiding for some time in Addis Ababa, until
he travelled to Norway in November 1995.
2.3 Upon
applying for asylum he was interviewed at the Asker and Baerum Police
Department on 3 and 22 November 1995. The Directorate of Immigration
rejected his application on 15 December 1995. The author was not found
to be credible for the following reasons: (a) he did not know anything
about the arrest of other members of his party; (b) two photographs
of the author at liberty bore dates which were during the time when
he claimed to have been in detention; (c) the author did not bear
visible marks of torture.
2.4 The author
filed an appeal with the Ministry of Justice on 5 January 1996 in
which he responded to the reasons given by the Directorate in the
following manner: he knew about the arrest of several members of his
party but he did not know their names; the automatic dating system
of the camera used to take the above-mentioned photographs was not
working properly because of a flat battery; he had scars as a result
of torture but the Norwegian police showed no interest in looking
at them.
2.5 On 6
November 1997 the Ministry of Justice rejected the appeal. The Ministry
did not find the explanations given by the author convincing. Moreover,
the Ministry was informed through the Norwegian Embassy in Nairobi
that the author was not known to the AAPO leadership; that, according
to that leadership, the meeting at which the author claimed to have
been arrested never took place; and that two documents provided by
the author with his application for asylum were found to be false.
2.6 The author
claims that he was not given the opportunity to comment on the report
of the Norwegian Embassy, a report which was based on an inquiry made
by a lawyer in Addis Ababa whose identity was never revealed to him.
The lawyer had gone to Debre Berhan and found AAPO offices there.
He therefore concluded that no AAPO meeting had taken place on 27
January 1995 and that it could not be verified whether the applicant
had been arrested. The lawyer also found that even when the AAPO was
operating in Debre Berhan the chairman and vice-chairman were not
the people indicated by the author in his application.
2.7 On 21
December 1997 the author filed a request for the reconsideration of
the case in which he commented on the verification report and the
Ministry's interpretation of it. He alleged that his arrest and detention
had been conducted in an irregular manner, therefore he could not
be expected to produce documentary evidence concerning them. He added
that he had never referred to an AAPO office in Debre Berhan, but
to the fact that he himself had had links with the office in Addis
Ababa. The names of other AAPO members referred to in the verification
report had been spelled wrong and in any case were so common that
other elements of identification should have been used. Their positions
in AAPO had been misunderstood. He noted that the head of AAPO, Askat
Weldeyes, was imprisoned for his underground activities. He further
stated that the Norwegian authorities had shown no interest in seeing
his scars and that, under article 17 of the Administration Act, it
was their responsibility to seek medical advice.
2.8 The author
provided the Ministry of Justice with a copy of a medical report of
4 February 1998 by an expert on torture victims. The report referred
to the methods of torture described by the author, who claimed that
every day for about two weeks he had been beaten with sticks, especially
on the knees, head and soles of the feet, and needles were inserted
under his feet while he was laying on his back with his hands tied.
The report listed a number of physical and psychological problems
that could be linked to such treatment, such as pain in the right
knee and left foot, walking difficulties, headaches, pains when urinating,
depression and sleep disorders. The doctor concluded that the author
had been subjected to torture and referred him to a rheumatologist
and the psycho-social team for further examination.
2.9 The Psycho-Social
Team for Refugees in Northern Norway issued a report on 20 April 1998
indicating that based upon the interviews conducted it was clear that
the author had been subjected to torture and had been traumatized
by his experiences in prison. He showed all the signs of post-traumatic
stress disorder and needed lengthy psychotherapeutic treatment. The
report was sent to the Ministry of Justice on 21 April 1998.
2.10 On 10
September 1998 the Ministry rejected the request to reconsider the
case. The Ministry refused to accept that the author's current health
problems were the result of his experiences in Ethiopia. Since his
allegations concerning his political activities were not credible,
his injuries could not be the result of such activities. On 14 September
1998 author's counsel sent a fax to the Ministry requesting that the
decision to expel the author be postponed on the basis of article
42 of the Administration Act, according to which if a complainant
intends to go to court or has taken his case to court, the Administration
can defer execution of a decision until a final judgement is made.
On 16 September 1998 the Ministry responded that the execution of
the decision of 6 November 1997 would not be deferred in view of the
fact that no new facts had been presented.
2.11 The
author argues that the Norwegian authorities repeatedly failed to
investigate his torture allegations, despite the obligation under
article 17 of the Administrative Act to examine all aspects of the
case. Such failure is also contrary to articles 15 to 17 of the Aliens
Act. He notes that the Ministry rejected the request to reconsider
the case without referring to the medical reports and avoiding all
comments thereon.
2.12 The
author further claims that his story is consistent and disagrees with
most of the arguments presented by the Ministry in rejecting his application.
For example, in its decision of 10 September 1998 the Ministry stated
that the International Committee of the Red Cross (ICRC) had access
to most regular places of detention in Ethiopia and had reported on
the occurrence of torture and other forms of physical mistreatment
of political detainees. The reports, however, did not refer to torture
of AAPO members held in secret detention centres. That such detention
centres exist is reflected in reports of NGOs, in particular Amnesty
International.
2.13 The
Ministry also states that the available information does not indicate
the use of torture except against persons connected to rebel groups
and that detention of persons connected to the more peaceful opposition
groups like AAPO is infrequent and does not involve a risk of torture.
The author disagrees and provides a copy of a 1995 Amnesty International
report according to which hundreds of AAPO supporters were arrested
in 1994 and early 1995. He also provides a copy of an article published
in the Ethiopian Register magazine in which co-defendants in
the trial against the AAPO president accused of participating in an
armed uprising described the torture to which they had been subjected
after their arrest in 1994, including in the Debre Berhan region.
According to the author, their stories are consistent with his own
allegations.
2.14 The
Ministry states that AAPO has denied having an underground organization.
The author replies that very seldom does such an organization publicize
its secret work.
2.15 Finally,
the author complains about the police interrogation report, which
did not fully reflect the information he had provided, in particular
with respect to the kind of torture to which he had been subjected.
The
complaint
3. The author
claims that in view of the fact that he was tortured, as a result
of which he is undergoing medical treatment, and that there is a pattern
of grave violations of human rights in Ethiopia, it is very likely
that he will be tortured again if he is returned to that country.
State
party's observations on the admissibility of the communication
4.1 In a
submission dated 19 January 1999 the State party objects to the admissibility
of the communication as domestic remedies had not been exhausted and
asks the Committee to withdraw its request under rule 108 (9) of its
rules of procedure. It contends that, when making decisions under
the 1988 Immigration Act, the immigration authorities take into consideration
Norway's international obligations, (2) including those enshrined
in the Convention. Furthermore, article 15 of the Act stipulates that
a foreigner must not be sent to an area where he may fear persecution
of such kind that would justify recognition as a refugee, or where
he/she will be at risk of being sent on to such an area. Corresponding
protection shall apply to any foreign national who, for reasons similar
to those given in the definition of a refugee, is in considerable
danger of losing his life or of being made to suffer inhuman treatment.
According to the State party, article 15 of the Immigration Act corresponds
to article 3 of the Convention. Although the Act does not refer explicitly
to the Convention the latter is applied by the immigration authorities
and will be applied by the courts if invoked.
4.2 Asylum-seekers
who find their applications for asylum turned down by the administration
have the possibility of presenting an application before the courts
for judicial review. In accordance with chapter 15 of the 1992 Enforcement
of Judgements Act, a concerned party may apply to the courts for an
injunction, either when a case has already been brought or in cases
not yet before the courts, asking the court to order the administration
to defer the deportation of the asylum-seeker. An injunction may be
granted if the plaintiff can demonstrate that the challenged decision
will probably be annulled when the main case is to be adjudicated.
In the case under consideration, the fax dated 16 September 1998 by
which the Ministry informed the author that stay would not be granted
cannot be interpreted as if the Ministry would carry out the deportation
even if the author had brought his case before the court. Moreover,
the author did not indicate that he intended to bring the case to
court.
4.3 Since
1987 more than 150 cases concerning the legality of decisions denying
asylum have been brought before Norwegian courts. A majority of those
cases have contained a request for injunction. Courts have their own
power to order a stay. If an applicant demonstrates that the requirements
for injunction are fulfilled, the Ministry cannot go ahead with the
deportation and is bound to obey the court. Experience shows that
the Ministry itself, in the majority of asylum cases brought before
the courts, decides administratively to stay its decision until the
court of first instance, following an oral hearing, decides on the
request for injunction.
4.4 The State
party also refers to the author's claim that his financial situation
does not permit him to go to court. Even if that is the case, the
argument cannot serve to make the requirement of article 22 (5) (b)
of the Convention inoperative. The wording of the provision is clear
and does not allow for this defence. Furthermore, the State party
notes that the author is indeed represented by counsel before the
Committee.
4.5 In cases
like the one under consideration, national courts are better placed
than international bodies to assess evidence. This is especially so
when it comes to the hearing of parties and witnesses on questions
of reliability and truthfulness. In court oral testimony will be subject
to examination by both parties and possibly the court itself. Such
a procedure is not undertaken by the Committee. The facts of the case
as they emerge from the documents are complex and detailed. Details
have to be understood in the light of oral testimony presented in
court. The requirement of exhaustion of local remedies is therefore
even more compelling.
Counsel's
comments
5. Counsel
claims that the Ministry of Justice tends not to allow asylum-seekers
to stay in the country while they prepare a judicial complaint or
while the court examines their case. He refers to the statement by
the State party according to which more than 150 cases concerning
the legality of decisions denying asylum have been brought before
Norwegian courts and argues that 150 cases in 12 years is a rather
low figure, which demonstrates how difficult it is to have access
to the courts. Finally, he claims that the author was unable to raise
funds in order to bring his case before the courts.
Additional
information submitted by the State party
6.1 By an
additional submission dated 29 October 1999, the State party informs
the Committee that according to the Immigration Act, an asylum-seeker
has right to free legal advice in relation to the administrative proceedings.
This right is limited to five hours of a lawyer's time in relation
to the application in the first administrative instance and an additional
three hours on administrative appeal. These limits are based on an
evaluation of what is needed to ensure proper assistance. It is possible
to apply for an extension of such assistance.
6.2 As to
the proceedings before the courts, an application for free legal aid
is to be made to the County Governor in accordance with the Legal
Aid Act No. 35 of 13 June 1998. The condition for receiving such aid
is that the applicant's income does not exceed a certain limit, which
is normally not the case for asylum-seekers even if they are receiving
employment income in addition to the benefits granted by the State.
If legal aid is granted, the aid covers counsel's fees in whole or
in part. In addition, the aid covers court fees and other costs related
to the proceedings, such as the cost of an interpreter. The State
party also states that those granted free legal aid in court proceedings
must themselves pay a part of the total costs, consisting of a moderate
fixed fee amounting to approximately 45 US dollars, and an additional
share of 25 per cent of the total financial cost beyond the basic
fee. However, this amount shall not be paid if the person concerned
has an income below a certain threshold.
6.3 The State
party states that it is not aware of whether the author has applied
for free legal aid in connection with contemplated court proceedings,
but notes that the fact that free legal aid is not unconditional when
an applicant appeals an administrative decision before the courts
cannot exempt the author from the requirement to exhaust domestic
remedies.
Issues
and proceedings before the Committee
7.1 Before
considering any claims contained in a communication, the Committee
must decide whether or not the communication is admissible under article
22 of the Convention.
7.2 The Committee
notes that the State party challenges the admissibility of the communication
on the grounds that all available and effective remedies have not
been exhausted. It further notes that the legality of an administrative
act may be challenged in Norwegian courts, and asylum-seekers who
find their applications for political asylum turned down by the Directorate
of Immigration and on appeal by the Ministry of Justice have the possibility
of requesting judicial review before Norwegian courts.
7.3 The Committee
notes that according to information available to it, the author has
not initiated any proceedings to seek judicial review of the decision
rejecting his application for asylum. Noting also the author's claim
about the financial implications of seeking such review, the Committee
recalls that legal aid for court proceedings can be sought, but that
there is no information indicating that this has been done in the
case under consideration.
7.4 However,
in the light of other similar cases brought to its attention and in
view of the limited hours of free legal assistance available for asylum-seekers
for administrative proceedings, the Committee recommends to the State
party to undertake measures to ensure that asylum-seekers are duly
informed about all domestic remedies available to them, in particular
the possibility of judicial review before the courts and of being
granted legal aid for such recourse.
7.5 The Committee
notes the author's claim about the likely outcome were the case to
be brought before a court. It considers, nevertheless, that the author
has not presented enough substantive information to support the contention
that such remedy would be unreasonably prolonged or unlikely to bring
effective relief. In the circumstances, the Committee finds that the
requirements under article 22, paragraph 5 (b), of the Convention
have not been met.
8. The Committee
therefore decides:
(a) That
the communications as it stands is inadmissible;
(b) That
this decision may be reviewed under rule 109 of the Committee's rules
of procedure upon receipt of a request by or on behalf of the author
containing information to the effect that the reasons for inadmissibility
no longer apply;
(c) That
this decision shall be communicated to the State party and the author.
