Submitted
by: Comisión Española de Ayuda al Refugiado
Alleged
victim: X (Name deleted)
State
party: Spain
Date
of communication: 20 January 1995
The
Committee against Torture, established under article
17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
Meeting
on 15 November 1995,
Adopts
the following:
Decision on admissibility
1.
The author of the communication is the Spanish Refugee
Aid Commission [Comisión Española de Ayuda al Refugiado
(CEAR)] on behalf of X, an Algerian citizen born on
20 February 1958. It is alleged that he suffered a
violation of article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or
Punishment by Spain in being deported to Algeria on
24 November 1994.
The
facts as submitted by the author
2.1
On 15 November 1993, X entered Spanish territory through
the town of Melilla, travelling on a false French
passport. He was detained by the police and stated
that he wished to travel to Germany. On 16 December
1993 he was brought before a court on a charge of
falsification of documents and was provisionally released.
2.2
On 11 January 1994, X applied for asylum, stating
that he was a member of the outlawed Front Islamique
du Salut (FIS) in Sidi Bel-Abbes, that security forces
had come to his house to look for him, and that he
feared being sentenced to death if detained.
2.3
On 3 October 1994, X's request for recognition as
a refugee was rejected by the Minister of Justice
and he was ordered to leave the country within 15
days. On 13 October 1994, X applied to the Audiencia
Nacional for a review of the decision and suspension
of the expulsion order. On 9 November 1994, X addressed
a letter to the Minister of Justice asking, if his
presence in Spain was to be found undesirable, to
be sent to a third country.
2.4
On the night of 22 to 23 November 1994, X was arrested
by the police at his residence and at 11 a.m. on 23
November 1994 he was put on board an aircraft bound
for Malaga and Madrid, whence he would be expelled
to Algeria. CEAR states that, despite numerous attempts,
it has been unable to obtain information on X's whereabouts
since 23 November 1994.
2.5
CEAR states that the question has not been submitted
to any other procedure of international investigation
or settlement, and that X has exhausted all available
remedies.
The
complaint
3.
CEAR claims that the Spanish authorities have violated
article 3 of the Convention by sending X back to Algeria
even though he was an FIS member. It is said that
the Spanish authorities did not take into account
the existence in Algeria of a consistent pattern of
gross, flagrant or mass violations of human rights.
Reference is made to news reports of continuing human
rights violations in Algeria.
Submissions
from the State party
4.1
In
its submissions dated 30 June, 6 October and 13 October 1995,
the State party
rejects
the allegations
by
CEAR as incorrect
and inaccurate.
It is
claimed
that
X illegally entered Spanish
territory on 14 November
1993,
crossing the wire near the Beni-Enzar frontier. He had
previously left Algeria
and
crossed Morocco.
On
15 November he was
arrested
as he sought
to take
a ship
from
Melilla to the Iberian peninsula using a false
French passport. He did not
at that time
state
that
his intention
was
to
seek
political asylum
but that he wished to work in Germany.
That statement,
made
in the presence of a lawyer and with the help of an interpreter, was made after he had been informed
of
his rights, at which time he announced his wish to report
his detention
to the
Algerian consulate.
4.2
The communication omits to mention that there was
an expulsion hearing in the presence of a lawyer and
with the assistance of an interpreter. X was explicitly
informed that he had 10 days during which to submit
his claims. The State party emphasizes that X made
absolutely no claims during the expulsion hearings
- inexplicable behaviour in an individual fearing
persecution or torture in his own country.
4.3
On
15 December, a month after his detention, X was ordered to
be expelled but
the
order was not
put
into
effect
because legal
proceedings were still pending.
On 16 December the criminal court
passed
judgement
and
X was released. X made no application for asylum in Spain until
11 January
1994,
eight weeks after
entering
Spanish
territory, when the
expulsion was
about
to be enforced. Then, for the
first
time,
he claimed
to belong to FIS. He presented a certificate bearing
neither date
nor
place of issue; it
was examined
by the
State party's experts,
who expressed
doubts as to its
authenticity. X claimed,
but produced
no evidence, that
the Algerian government authorities
had "decided to arrest him" and, somewhat
contradictorily, that he had been "convicted
of a political crime", without explaining what
crime
or
when
or
by
what
court
he
had
been
convicted.
4.4
Following the submission of the application for asylum,
X was allowed 15 days to submit his claims and submit
such documents and substantiating evidence as he saw
fit. He did not do so. His application was communicated
to the representative of the United Nations High Commissioner
for Refugees in Spain, who made no report, oral or
written, on the proceedings.
4.5
Almost eight months later, on 31 August 1994, the
application for asylum was denied in view of the lack
of documentation supporting X's case. On 3 October
1994, X was notified that he must leave Spanish territory
within 15 days. When he failed to comply with the
departure order, permission to expel him was sought
from Criminal Court No. 2 in Melilla, which granted
permission on 27 October 1994; the expulsion was carried
out on 24 November 1994 in accordance with an order
from the General Directorate of State Security endorsed
by the competent court, and X was put on a plane to
Algeria.
5.1
Regarding
the admissibility of the communication, the State party
maintains that
throughout
his time in
Spain X adduced no "substantial grounds for
believing that he would be in danger of being subjected
to torture" if he was expelled.
5.2
The State party also challenges the authority of CEAR
to represent X before the Committee, inasmuch as the
certificate presented only covers representation of
X in administrative matters in Spain and does not
give CEAR blanket authority to submit a communication
under article 22 of the Convention.
Observations
by counsel for the author
6.1
In his observations dated 11 September and 9 November
1995, counsel for CEAR confirms his authority to act
on behalf of X, who is said to have contacted CEAR
on 16 December 1993 and been advised by lawyers Arias
Herrera and Pellicer Rodríguez. Counsel for CEAR confirms
his authorization to represent X and sends a copy
of a certificate dated 14 November 1994.
6.2
On the facts, CEAR repeats that X fears persecution
in his home country because he is a member of FIS.
Issues
and proceedings before the Committee
7.1
Before considering any of the allegations in a communication,
the Committee against Torture must decide whether
or not the communication is admissible under article
22 of the Convention.
7.2
Although the accompanying mandate does not specifically
mention application to the Committee, in this case
the explanations provided by CEAR for its representation
of X are accepted.
7.3
The Committee has examined the representations made
by CEAR to the Spanish authorities regarding the asylum
proceedings and to the Committee under article 22
of the Convention. It points out that its authority
does not extend to a determination of whether or not
the claimant is entitled to asylum under the national
laws of a country, or can invoke the protection of
the Geneva Convention relating to the Status of Refugees.
Under article 3 of the Convention, the Committee must
decide whether expulsion or extradition might expose
an individual to the risk of being tortured.
7.4
The Committee notes that throughout a year of proceedings
in Spain, X's representatives based their arguments
solely on asylum and did not invoke the right protected
by article 3 of the Convention. Nor did they present
the Committee with serious grounds for believing that
X risked being tortured if he was expelled to Algeria.
It is not alleged that X was detained or tortured
in Algeria before leaving for Morocco and Spain; it
is not indicated precisely what he did in FIS to justify
his fear of being tortured. a/ On the contrary,
X said in his first statement to the Melilla authorities,
with a lawyer and interpreter present, that his intention
was to seek work in Germany, and the truthfulness
of that statement was not questioned during the asylum
proceedings in Spain.
7.5
The Committee concludes that the communication on
behalf of X has not been sufficiently justified as
regards the claimed violation of article 3 of the
Convention b/ but is rather a matter of political
asylum, making the communication incompatible with
article 22 of the Convention.
8.
The Committee therefore decides:
(a) That the communication is inadmissible;
(b) That this decision shall be communicated to the
author and the State party.
[Done
in English, French, Russian and Spanish, the Spanish
text being the original version.]
Notes
a/
In the Committee's rulings on communications No. 13/1993
(Mutombo v. Switzerland) and No. 15/1994 (Khan
v. Canada), both authors alleged and submitted
medical evidence and other documents to demonstrate
that they had been detained and tortured before fleeing
their respective countries.
b/
Compare decisions in cases No. 17/1994 (X v. Switzerland)
and No. 18/1994 (X v. Switzerland), which were
declared inadmissible on 17 November 1994.
