Communication No. 221/2002 : Sweden. 18/05/2005.
CAT/C/34/D/221/2002. (Jurisprudence)

Convention Abbreviation: CAT

Committee Against Torture

Thirty-fourth session

2 - 21 May 2005

Decisions of the Committee Against Torture under article 22 of the

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

- Thirty-fourth session

Communication No. 221/2002

Submitted by: Mr. M.M.K. (represented by counsel)

Alleged victim: Mr. M.M.K.

State party: Sweden

Date of complaint: 19 November 2002

The Committee against Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 3 May 2005,

Having concluded its consideration of complaint No. 221/2002, submitted to the Committee against Torture by Mr. M.M.K. under article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Having taken into account all information made available to it by the complainant, his counsel and the State party,

Adopts the following:

Decision under article 22, paragraph 7, of the Convention:

1.1 The complainant is Mr. M.M.K., a Bangladeshi citizen, currently residing in Sweden where he has requested asylum. He claims that his removal to Bangladesh The Convention entered into force for Bangladesh on 4 November 1998, but the State party has not made a declaration under article 22 of the Convention. (1) in the event of the rejection of his refugee claim would constitute a violation of articles 3 and 16 of the Convention by Sweden The Convention entered into force for Sweden on 26 June 1987, and the State party has accepted the Committee's competence under article 22 of the Convention.. (2) He is represented by counsel.

1.2 In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the complaint to the State party on 21 November 2002. Pursuant to rule 108, paragraph 1 of the Committee's revised rules of procedures, the State party was requested to refrain from expelling the complainant to Bangladesh pending the consideration of his case by the Committee. On 8 January 2002, the State party informed the Committee that it had decided to stay the enforcement of the decision to expel the complainant to Bangladesh until further notice.

The facts as submitted by the complainant:

2.1 In 1993, while living in Bangladesh, the complainant was appointed as the local welfare secretary of the Jatiya Party in Mymensingh. He held that position until coming to Sweden in 2002. His duties included informing Bangladeshi citizens about their rights and about the widespread corruption in the country. In 1995, the complainant received kidnapping and death threats by followers of the Bangladesh Nationalist Party ("BNP") and thereafter from 1999 to 2002, by followers of the Awami League.

2.2 Between 1993 and 1996, the complainant studied in India and came back to Bangladesh during holidays, and whenever his duties towards the Jatiya Party demanded it. For almost a year during 1995 to 1996, he was not in Bangladesh at all out of fear of being kidnapped and because of death threats.

2.3 In 1995, while on holidays in Bangladesh, the complainant was kidnapped by followers of the BNP and held for four days. During this time he was allegedly severely maltreated and his arms and hands were slashed with knives. The purpose was to make him stop his political activities and his fight against corruption. After four days he was left in the street, and passers-by brought him to hospital. He reported this incident to the police but was not able to name any of his kidnappers as he was blindfolded during the ill treatment. The police were unable to arrest anyone involved.

2.4 In June 1995, the complainant was falsely accused of murder in his home town, Mymensingh. For this reason, and because the police was looking for him he did not stay at home, but mostly in Dhaka. He continued to carry on his political activities in other parts of the country.

2.5 In September/October 1999, the complainant was arrested while taking part in a demonstration in Dhaka. He was accused of kidnapping. He states that the accusation was false and that according to the police report the Awami League was responsible for it. He was released on bail in January/February 2000 after complaining of torture. Throughout his custody, the complainant was subjected to torture, at least once a week for two or three days at the time. He describes the torture as follows; his hair was shaved and water was dropped on his head and poured through his nostrils, he was subjected to electric shocks, and hit with clubs, truncheons and long sticks. He was also electrocuted by being forced to urinate in hot water into which electric cables were introduced. The purpose was to obtain a confession and to stop him from being politically active. According to the complainant's counsel in Bangladesh, the responsible authorities acknowledged that he had been subjected to maltreatment but not to "more severe forms of torture", and that sometimes a little force or torture was necessary to obtain "the truth". The case against the complainant is still pending.

2.6 After his release, the complainant was treated for some time in a private clinic, for his mental and physical sequels of the torture. In May/June 2000, and although the complainant had only regained about 70% of his former capacity, he resumed his political activities.

2.7 In July 2000, the complainant was again arrested and falsely accused of illegal possession of arms and drug dealing. He was refused bail on account of the seriousness of the charges and remanded in custody for two and a half months awaiting trial. He indicates that his father "arranged" for his case pending not to be joined with the murder case. While on remand he was subjected to mental torture; and forced to watch while others were tortured. Upon release on bail in September 2000, he was again administered medical treatment.

2.8 In February 2001, the complainant left Bangladesh, not because of an isolated incident but because of everything that had happened to him since 1995 and because he feared being killed either by followers of the Awami League or the BNP, and of being subjected to torture again. That the BNP and its coalition partners won the elections in October 2001 did not allay his fear.

2.9 On 14 February 2001, the complainant entered Sweden, and requested asylum on the same day. Counsel requested a delay of the examination of the case until 31 January 2002, to obtain documentary evidence of the complainant's case from Bangladesh. The Migration Board rejected counsel's request for such a delay.

2.10 While in Sweden, the complainant was informed that the police in Bangladesh had been looking for him and that they had a warrant for his arrest, as he had not appeared in court. He requested medical assistance in Sweden at the clinic for asylum seekers in Fittja.

2.11 On 19 December 2001, the Migration Board denied his application. The Board did not consider credible that the complainant had been persecuted by Bangladeshi authorities, since he, although wanted for murder, had been able to travel back and forth between Bangladesh and India. It also noted that one page of the complainant's passport had been torn out, and that it was not probable that he was released on bail given the serious charges against him. In its conclusion, the Board also stated that it did not consider it probable that the complainant had been subjected to torture, or that he had a well-founded fear of being subjected to torture or corporal punishment.

2.12 The complainant appealed to the Aliens Appeal Board. The Board was presented with documentary evidence from Bangladesh, including two medical reports. A third medical report from the clinic for asylum seekers in Fittja, Sweden, was also submitted by counsel. Counsel suggested that if the Board had doubts about the authenticity of the documents, it should investigate the matter through the Swedish Embassy in Dhaka. The Board did not initiate such an investigation. Counsel requested the Board to consider another medical investigation; this was not deemed necessary.

2.13 On 6 August 2002, the Aliens Appeal Board upheld the decision of the Migration Board, arguing that it is easy to obtain false documents in Bangladesh and therefore they had to be considered of low evidentiary value. It concluded that the complainant's information about his political activities and that he had been subjected to "torture" did not justify the conclusion that he would risk political persecution or torture in Bangladesh if returned there.

The Complaint:

3.1 The complainant argues that there are substantial grounds for believing that he would be subjected to torture if returned to Bangladesh, and that this would constitute a violation of article 3 of the Convention by Sweden.

3.2 He claims that the execution of the 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 he was subjected to.

3.3 The complainant argues that his personal fear of torture has been substantiated throughout the asylum hearings and medical reports. He argues that the Aliens Appeal Board did not consider it necessary to have his injuries investigated nor to check the authenticity of the documents, including the medical reports, provided from Bangladesh. Further, he argues that the Board did not question his information about what he was subjected to or what happened to him in Bangladesh.

The State party's submission:

4.1 On 19 May 2003, the State party submitted its observations on the admissibility and merits of the case. It submits that the claim under article 3 should be declared inadmissible, since it lacks the minimum of substantiation to make it compatible with provisions of the Convention.

4.2 As regards the complaint related to article 16, the State party submits that it should be declared inadmissible, since this provision does not apply in the present case. According to the Committee's General Comment on the implementation of article 3, the obligation on a State party 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 of the Convention. Article 3 of the Convention does not contain a reference to "other acts of cruel, inhuman or degrading treatment or punishment" as article 16, nor does article 16 contain a reference to article 3. For the State party, the purpose of article 16 is to protect persons deprived of their liberty or who are otherwise under the factual power or control of the person responsible for the treatment or punishment, and that the complainant is not a victim in that sense. In any event, the claim under article 16 lacks the minimum substantiation to make it compatible with provisions of the Convention.

4.3 Alternatively, the State party submits that the complainant's claims are unfounded.

4.4 Regarding the complainant's claim under article 3, the State party acknowledges that the general human rights situation in Bangladesh is problematic but contends that it has improved from a long-term perspective, and that persecution for political reasons is rare at grass-roots level and may under any circumstances be avoided by seeking refuge in another part of the country.

4.5 While the jurisprudence in respect of article 3 requires that the complainant faces a foreseeable, real and personal risk of being tortured in the country to which he is returned, the Swedish authorities apply the same kind of test as that under article 3 when considering an application for asylum under the Aliens Act. The State party submits that the domestic authorities are in a strong position to assess claims from Bangladeshi asylum seekers, since Sweden received 1.427 such requests between 1990 and 2000, and residence permits were granted in 629 cases.

4.6 In relation to the complainant's allegation that he risks being ill-treated by political opponents upon return to Bangladesh, the State party submits that the risk of being subjected to ill-treatment by a non-governmental entity or by private individuals, without the consent or acquiescence of the government of the receiving country, falls outside the scope of article 3 of the Convention.

4.7 As regards the complainant's claim that he risks being tortured by the police, the State party notes that he was allegedly arrested and tortured by police on instructions from the then ruling party, the Awami League, because of his political activities for the Jatiya party, and that false accusations from that party resulted in the criminal trial which is still pending against him. However, in October 2001, the Awami League was replaced by a government coalition consisting of the BNP and three smaller parties, among them a fraction of the Jatiya party. Since the Awami League is currently in opposition, the risk of being exposed to harassment by the authorities instigated by that party should have been seriously reduced.

4.8 As regards the BNP supporters' alleged ill-treatment of the complainant in 1995, the State party submits that there is nothing to indicate that the Bangladeshi authorities had anything to do with it at all, or that the complainant has anything to fear from the parties currenty in power.

4.9 The State party notes that the complainant has not submitted any concrete evidence of his membership in and activities for the Jatiya party. From what he told the Swedish immigration authorities, he did not hold a leading position within the party. An eventual risk of harassment on account of his political activities would therefore only be of local character, and he could avoid harassment by moving within the country, as he did when he was charged with murder in 1995.

4.10 The State party notes that the complainant only invoked one certificate from Bangladesh and one certificate from the Fittja health centre in support of his allegations of past torture. The certificate from Bangladesh is undated and merely states that the complainant arrived to the clinic on 15 October 2000, after being subjected to physical torture, and was treated for physical injuries and mental depression. However, during the interview with the Migration Board, the complainant emphasised that when he was arrested in July 2000 he was subjected to mental but not physical torture. The certificate from Fittja does not include an assessment of whether the author was tortured and does not mention physical injuries or post-traumatic stress disorder.

4.11 The State party has engaged the Swedish Embassy in Dhaka to look into the two ongoing criminal trials against the complainant, through a local lawyer. He found that the complainant had been acquitted of the murder charges on 29 August 2000, but that he is accused in another case pending before the court. Accordingly, no murder case was pending against the complainant when Swedish authorities examined his asylum application. Notwithstanding reported shortcomings of the judicial system in Bangladesh, the complainant cannot argue that he did not receive a fair trial in respect of the murder charges against him, and may also be acquitted in the case of kidnapping against him. In the case of kidnapping he benefits from legal representation, and may appeal to a higher court. The State party recalls that the higher courts in Bangladesh are reported to display a significant degree of independence from the executive.

4.12 Should the circumstances be such that the complainant risks being detained upon return to Bangladesh, either to be tried or to serve a prison sentence, this does not justify the conclusion that he risks being subjected to torture. The complainant has not shown how he would be in danger of such politically motivated persecution as would render him particularly vulnerable to torture during a possible period of detention.

4.13 As to the claim under article 16, the State party contests the complainant's allegation that because of his "fragile psychiatric condition and severe PTSD", a deportation of him would amount to a cruel, inhuman or degrading treatment within the meaning of article 16, paragraph 1. The State party refers to the Committee's jurisprudence in G.R.B v. Sweden, (3) and S.V. et al v. Canada., (4) and the jurisprudence of the European Court of Human Rights, and submits that only in very exceptional circumstances may a removal per se constitute cruel, inhuman or degrading treatment. Such exceptional circumstances have not been presented in the complainant's case:

(a) Firstly, because the complainant has presented scant medical evidence in connection with his asylum application. Before the Migration Board, he did not invoke any medical evidence at all. Before the Aliens Appeals Board, he submitted a medical certificate from the Fittja health care centre, which states that he is severely traumatised; it does not state that he suffers from PTSD or that he contemplated suicide. In addition,the case file of the immigration authorities reveals that the complainant, despite his health problems, worked in a restaurant in Stockholm. The State party submits that the fact that the complainant did not invoke any medical evidence until his application was pending before the Aliens Appeals Board, may indicate that his medical condition has deteriorated primarily as a consequence of the Migration Board's decision to reject his asylum application.

(b) Secondly, there is no substantial basis for the complainant's fear of returning to Bangladesh. He has family in Bangladesh to support him, and medical care is available if needed, at least in a big city like Dhaka where most of the family members live.

(c) Thirdly, the enforcement authorities in Sweden are obligated to implement the deportation in a human and dignified manner which takes into account the alien's health.

The complainant's comments:

5.1 In comments dated 28 July 2003, counsel submits that the complainant was not aware that he had been acquitted in the case of murder until he received the State party's submission. As the investigations undertaken by Sweden revealed that there were in fact two court cases against the complainant in Bangladesh, this shows that the documents were authentic.

5.2 Counsel reiterates that, the complainant has submitted credible evidence to support his allegations of previous torture and charges against him in Bangladesh.

5.3 In respect of the State party's reference to its experience with Bangladeshi asylum seekers, counsel refers to a UNHCR report which reveal that out of 245.586 applications from asylum seekers submitted in Sweden between 1990-1999, only 1.300 were made by Bangladeshi citizens. Furthermore, in respect of the State party's contention that the complainant's risk of being maltreated by political opponents falls outside the scope of article 3, it is submitted that the complainant does not claim a risk of maltreatment by political opponents, but by Bangladeshi the police.

5.4 In respect of the State party's contention that the maltreatment of the complainant by supporters of the Awami League, should have ceased since the Awami League is no longer in power, whereas a fraction of the Jatiya party is part of the government coalition, counsel submits that false accusations were also made against the complainant by BNP supporters. BNP supporters in fact initiated the court case against him in 1995. The complainant was only acquitted in August 2000, more than 5 years after the charges were filed. As regards the other charges against him still pending, he continues to risk detention and thereby to be subjected to torture by police.

5.5 Regarding the argument that the complainant presented insufficient evidence to support his claims, counsel submits that in the proceedings before the Aliens Appeals Board, he requested a medical forensic and psychiatric investigation, but the Board did not consider this to be necessary. Nevertheless, counsel requested the Kris- och Traumacentrum (KTC) to perform such an investigation, but this institution could not do so in the autumn of 2002.

5.6 As to the contention that the complainant stated before the Migration Board that he had only been subjected to mental torture during his arrest in July-October 2000, while the medical certificate from Bangladesh stated that he suffered from both physical and medical injuries following the torture, counsel recalls that it is not uncommon that victims of torture are unable to remember exactly what happened to them in each and every instance.

5.7 Counsel submits that, as regards the change of government, those working for the Freedom party (5) are still in opposition to the government, and are subject to false accusations, detention and torture by police.

State party's and complainant's additional comments:

6.1 By note of 12 September 2003, the State party refers to counsel's allegation concerning the supporters of the Freedom party, and assumes that the reference to the Freedom party is an oversight and that the complainant still claims that he was affiliated with the Jatiya party. It recalls that a fraction of the Jatiya party is part of the present government in Bangladesh.

6.2 It submits that while counsel indicates that the complainant is currently an active member of the political opposition in Bangladesh, there is nothing in the information to the Swedish immigration authorities to indicate the same. As regards the case of kidnapping, this was according to the complainant initiated by the Awami League. The State party considers that the transfer of political power therefore has substantially reduced the complainant's risk of being subjected to detention and torture. The State party also suggests that the Bangladesh authorities do not take a great interest in the complainant, since he could travel about the country for several years doing political work, notwithstanding that he was charged with murder.

6.3 In further submissions of 9 and 11 December 2003, counsel submits that the complainant does not belong to the fraction of the Jatiya party which is part of the current government in Bangladesh, the Naziur Rahmen fraction. He alleges that this fraction constitutes one part of the problems to the fraction the complainant belongs to, the Ershad fraction, in that it applies political pressure to make members change from the Ershad fraction to the Naziur Rahmen fraction. The complainant has described his political activities in detail before the Migration Board and the Aliens Appeals Board, and neither institution questioned his activities.

6.4 In respect of the State party's suggestion that the complainant is not of interest to the Bangladeshi authorities since he could move about in the country while being charged with murder, counsel submits that his movements were limited, and that because Bangladesh did not have a centralized data system, he was not apprehended by the police before 1999.

6.5 Counsel submits documentation to the effect that the author was examined by doctors at the Centre for victims of torture and trauma in December 2003. The psychiatrist concludes that it is beyond doubt that Mr. M.M.K. has been tortured in the way he describes. He also concludes that the author is suicidal. The forensic report lists a number of findings of scars and injuries which are typical for victims of violence and support the author's description of torture.

6.6 Counsel also submits a declaration by the Vice Chairman of the Jatiyo Party Central Committee, confirming that the author has been an active member of the party since 1991, and that he was subjected to government harassment and persecution for his political belief.

6.7 By note of 23 April 2004, the State party submits that the new documentation from counsel is lodged out of time and should not be considered by the Committee. In the event that the Committee decides to consider the additional documentation, the documentation was presented long after the national authorities had determined his case and shortly before the Committee is about to decide it. The fact that medical evidence is obtained and invoked at such a late time is generally likely to diminish its value. With regard to the pending court case against the author, the Embassy engaged a lawyer who reported to the Embassy on 29 February 2004 that the court of Bogra had not yet been able to complete the proceedings and deliver a judgment in the case, since no witness had turned up to give evidence.

Issues and proceedings before the Committee:

Consideration of 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. In this respect 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 also notes that the State party acknowledges that domestic remedies have been exhausted.

7.2 In respect of the State party's contention that the claim under article 3 should be declared inadmissible for lack of minimal substantiation, the Committee observes that it has received detailed information about pending court cases against the complainant, one of which could result in the complainant's arrest and detention upon return to Bangladesh, and that the complainant has described in detail his activities for a political party and experience of torture. The Committee considers that this claim should be examined on the merits.

7.3 To the extent that the complainant argues that the State party would be in breach of article 16 by exposing him to possible ill-treatment, the Committee observes that only in very exceptional circumstances may a removal per se constitute cruel, inhuman or degrading treatment. Such exceptional circumstances have not been presented in the complainant's case. Accordingly, the claim under article 16 is inadmissible ratione materiae, as incompatible with the provisions of the Convention.

7.4 With regard to the State party's contention that counsel's further documentation was lodged out of time and should not be considered by the Committee, the Committee notes that this documentation was not submitted in response to a request for information from the Committee within a specific deadline, as set out in Rule 109, paragraph 6 of the Rules of procedure, but after a recent medical examination of the complainant and a recent declaration by the Vice Chairman of the Jatiyo Party Central Committee. While the Committee considers that the parties to the proceedings should submit arguments and evidence within set deadlines, it considers that new evidence of critical importance to the Committee's assessment of the complaint may be submitted as soon as it is made available to either party.

7.5 The Committee notes that this new documentation was submitted 3 months after it was made available to the complainant. However, it finds that in the circumstances of the present case, where the State party rejected the complainant's request for a medical examination, and where the medical certificates are inconclusive on the issue of the complainant's experience of torture, a new medical certificate must be admitted for the evaluation of the complaint by the Commitee. The new documentation was transmitted to the State party for comments, to ensure equality of arms, and the State party has commented on it. The Committee therefore finds that it should consider the new medical documentation made available to it. In the same context, it also admits as evidence the declaration by the Vice Chairman of the Jatiyo Party Central Committee.

7.6 The Committee accordingly declares the claim under article 3 admissible and proceeds to its consideration on the merits.

Consideration of the merits:

8.1 The Committee must decide whether the forced return of the complainant to Bangladesh would violate the State party's obligation, under article 3, paragraph 1 of the Convention, not to expel or return an individual to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. It follows that, in conformity with the Committee's jurisprudence, the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient ground for determining whether the particular person would be in danger of being subjected to torture upon his 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 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.

8.2 The Committee takes note of the complainant's information about the general human rights situation in Bangladesh, in particular recurrent incidents of police violence against prisoners and political opponents. The State party, while conceding the occurrence of police torture and violent clashes between political opponents, nevertheless considers that the higher levels of the judiciary display a significant degree of independence.

8.3 The Committee observes that the main reason the complainant fears to be at personal risk of torture if returned to Bangladesh, is that he was previously subjected to torture by the police, and that he risks detention upon return to Bangladesh, because of criminal charges pending against him.

8.4 The Committee notes that the Swedish immigration authorities have thoroughly evaluated the complainant's case, and considered whether the complainant risked torture or persecution in Bangladesh; they concluded that he was not at risk.

8.5 With regard to the complainant's allegations of experienced torture, the Committee considers that while the other medical certificates submitted in this case do not clearly support the complainant's version, the medical report from Sweden submitted in March 2004, supports Mr. M.M.K.'s contention that he was subjected to torture and ill-treatment. The fact that the medical examination took place several years after the alleged incidents of torture and ill-treatment does, in the present case, not allay the importance of this medical report. However, the Committee considers that while it is probable that the author was subjected to torture, the question is whether he risks torture upon return to Bangladesh at present.

8.6 In response to this question, the Committee notes the State party's contention that since the Awami League is currently in political opposition, the risk of being exposed to harassment on the part of the authorities instigated by members of that party has diminished. The State party further argues that the complainant does not have anything to fear from the political parties now in power, since he is a member of one of the coalition parties. While noting the complainant's explanation that he supports a fraction of the Jatiya party which is opposed to that part of the party in government, the Committee does not consider that this fact per se justifies the conclusion that the complainant would be at risk of persecution and torture at the hand of supporters of the government fraction of the Jatiya party or the BNP.

8.7. Finally, with regard to the complainant's allegation that since he risks detention in respect of the pending court charges against him, and detention is inevitably followed by torture, the Committee concludes that the existence of torture in detention as such does not justify a finding of a violation of article 3, given that the complainant has not demonstrated how he personally would be at risk of being tortured.

8.8 In light of the foregoing, the Committee finds that the complainant has not established that he himself would face a foreseeable, real and personal risk of being tortured within the meaning of article 3 of the Convention.

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 complainant's removal to Bangladesh by the State party 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.]

Notes

1. The Convention entered into force for Bangladesh on 4 November 1998, but the State party has not made a declaration under article 22 of the Convention.

2. The Convention entered into force for Sweden on 26 June 1987, and the State party has accepted the Committee's competence under article 22 of the Convention.

3. Communication No. 83/1997, Views adopted on 15 May 1998.

4. Communication No. 49/1996, Views adopted on 15 May 2001.

5. Apparently a misspelling; see paragraph 6.1below, which was not challenged to by counsel.