Distr.
GENERAL
CAT/C/37/D/262/2005
22 January 2007
Original: ENGLISH
Communication No. 262/2005 : Switzerland. 22/01/2007.
CAT/C/37/D/262/2005. (Jurisprudence)
Convention Abbreviation: CAT
Committee Against Torture
Thirty-seventh session
6 - 24 November 2006
Decisions of the Committee Against Torture under article 22 of the
Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
- Thirty-seventh session -
Communication No. 262/2005
Submitted by: V.L. (not represented by counsel)
Alleged victim: The complainant
State Party: Switzerland
Date of complaint: 12 January 2005 (initial submission)
The Committee against Torture, established under Article 17 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 20 November 2006,
Having concluded its consideration of complaint No. 262/2005, submitted to the Committee against Torture by V.L. 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,
Adopts the following decision under article 22, paragraph 7, of the Convention against Torture.
1.1 The complainant is V. L., born in 1946, a Belarusian citizen currently living in Switzerland, pending her return to Belarus. She does not invoke specific provisions of the Convention against torture and other cruel, inhuman or degrading treatment or punishment, but her complaint appears to raise issues under article 3 thereof. She is not represented by counsel.
1.2 On 14 January 2005, the Committee, through its Rapporteur on New Complaints and Interim Measures, transmitted the complaint to the State party and requested it, under Rule 108, paragraph 1, of its rules of procedure, not to return the complainant to Belarus while her case is under consideration by the Committee. The Rapporteur indicated that this request could be reviewed in the light of new arguments presented by the State party. The State party acceded to this request by note of 25 February 2005.
Factual background
2.1. The complainant's husband stood in local elections in Belarus in 1995 and in 2000. In a letter to the editor of a newspaper, he criticised the president of the country. He was then interrogated several times by the office of security and the police. He was also attacked by four unknown men in April 2000. The police advised him to cease his political activities. He left Minsk and stayed with relatives from July 2000 to June 2001. He left the country on 7 June 2001 and went to Belgium where he applied for asylum. His application was rejected and he travelled to Switzerland on 18 December 2002. In the meantime, the complainant herself remained behind in Belarus and was frequently interrogated about her husband's whereabouts. On 12 September 2002, her passport was taken away from her. She left the country on 16 December 2002 and joined her husband in Switzerland on 18 December 2002.
2.2 The complainant, together with her husband, applied for asylum in Switzerland on 19 December 2002. Both based their claims on the alleged political persecution of the husband by the Belorussian authorities. These claims were not considered to be credible by the Swiss Federal Office for Refugees (BFF) which considered that the documents submitted by the claimants were not genuine. Consequently, the applications were rejected on 14 August 2003 and the complainant and her husband were ordered to leave the country by 9 October 2003.
2.3 On 11 September 2003, the complainant and her husband appealed to the Swiss Asylum Review Board (ARK). The ARK rejected the appeal on 15 September 2004. The complainant requested a revision of the decision on 11 October 2004, in which she mentioned for the first time that she had suffered sexual abuses by members of the police ("Miliz"). She urged the Swiss authorities to reconsider her asylum application on its own right, rather than as part of her husband's claims, explaining that they now lived separately. It was only after the couple's arrival in Switzerland that the complainant informed her husband of the sexual abuses. He reacted with insults and humiliating remarks and forbade her to mention the sexual abuses to the Swiss authorities. By letter dated 15 October 2004, the ARK requested further information on the request for revision because the reasons invoked for the revision of the appeal decision were not sufficient. On 21 October 2004, the complainant elaborated on the grounds for revision. She now claimed that prior to her departure from Belarus, she had been interrogated and raped by three officers of the police who wanted information about the whereabouts of her husband. These officers also beat her and penetrated her with objects. A subsequent medical examination in a hospital confirmed bruises and damage to her sexual organs. The complainant was then treated medically and could not return to her workplace for more than three weeks.
2.4 Following this incident, the complainant complained to the officer-in-charge of the department whose officials had sexually abused her. Thereafter, she received threats from several officers of this department. One officer followed her home, asking her to withdraw her complaint. There were constant night visits to her home and searches by the police. One day, the same officers who had previously raped her kidnapped her in front of her office, and drove her to an isolated place where she was raped again. The officers threatened to mutilate and kill her. On 12 September 2002, she was called to the police offices, where her passport was taken away. Following these events, she became depressed and went into hiding. The threats and intimidations, coupled with the previous sexual abuses, motivated her flight from Belarus.
2.5 The complainant claims that her failure to mention the rape in her initial interview with the BFF was due to the fact that she had considered it humiliating and an affront to her personal dignity. Furthermore, the psychological pressure from her husband prevented her from mentioning the sexual abuses. She explained that her husband had disappeared in October 2004 and his whereabouts are unknown to her. Now that he had left the country, she was however willing to provide details about the events described above and a medical certificate.
2.6 In its decision of 1 December 2004, the ARK acknowledged that in principle, rape was a relevant factor to be considered in the asylum procedure, even when reported belatedly, and that there may be psychological reasons for victims not to mention it in the first interview. However, the complainant's claims did not appear plausible to the ARK, since, according to it, the complainant had neither substantiated nor proven psychological obstacles to at least mentioning the rape in the initial interview. Nor had her story or her behaviour been otherwise convincing. The ARK also expressed suspicion about the "sudden ability of the complainant to provide details about the alleged rape". It was unconvinced that the complainant would be threatened with persecution or inhuman treatment upon return, and concluded that there were no legal obstacles to her return to Belarus.
2.7 On 7 December 2005, the complainant sent to the ARK a medical report, demonstrating that she had suffered sexual abuses before she left Belarus. By letter of 14 December 2005, the ARK replied that her case was closed. She wrote again to the ARK on 7 January 2005 explaining why she disagreed with its decision of 1 December 2004. She was informed on 11 January 2005 that she would be removed from the country on 20 January 2005.
The complaint
3. The complainant submits that, from the documents submitted by the complainant, it is clear that she justifiably fears persecution by the police in Belarus. She does not invoke specific provisions of the Convention against torture and other cruel, inhuman or degrading treatment or punishment, but her complaint appears to raise issues under article 3.
State party's submissions on the admissibility of the communication
4.1 By note verbale of 25 February 2005, the State party challenges the admissibility of the complaint. It submits that the complainant's letter dated 12 January 2005 cannot be considered to be a complaint within the meaning of article 22 of the Convention. It recalls that under Rule 107, paragraph a, of the Committee's rules of procedure, the complainant must claim to be a victim of a violation by the State party concerned of the provisions of the Convention. Under paragraph b, the Committee shall ascertain that the complaint is not an abuse of the Committee's process or manifestly unfounded. It notes that the complainant merely forwards the documents concerning her asylum application and requests the Committee "to render me the help and assistance in […] the decision of my question of protection", rather than identifying any error on the part of the national authorities when confirming the removal decision. It argues that the complainant failed to demonstrate that she would face a risk of torture upon her return to Belarus. In the absence of any claim of a violation, the State party considers it impossible to comment on the complainant's submission.
4.2 The State party concludes that the complainant's letter cannot be considered as a communication within the meaning of article 22 of the Convention. In the event that it was nevertheless considered as such, it invites the Committee to declare it inadmissible for failing to disclose violations of the Convention, or as amounting to an abuse of the right of submission, or as being manifestly unfounded under Rule 107, paragraph b, of the rules of procedure.
Complainant's comments on the State party's submission
5. By letter of 12 March 2005, the complainant presents her comments on the State party's submission on the admissibility of the communication. She provides more detail on the sequence of events leading to her departure from Belarus. She also sends a medical report dated 4 July 2002 of the 7th urban polyclinic in Minsk. The report states that the complainant has suffered a trauma and damage to her sexual organs.
State party's submissions on the merits of the communication
6.1 By note verbale of 24 June 2005, the State party reaffirms its challenge to the admissibility of the communication; subsidiarily, it submits the following arguments on the merits. The State party first recalls its obligations under article 3 of the Convention, and recalls that the Committee has specified the conditions of application of this provision in its jurisprudence and in its General Comment No.1 of 21 November 1997.
6.2 Under article 3, paragraph 2, of the Convention, the Committee must take into account all relevant considerations including the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The State party submits that it must be determined whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. It follows that the existence of a consistent pattern of human rights violations in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. (1)Consequently, additional grounds must be adduced to show that the risk of torture can be qualified as "foreseeable, real and personal". (2) The State party notes that the situation in Belarus cannot of itself constitute a sufficient ground for concluding that the complainant would be in danger of being subjected to torture upon her return to that country. (3) The State party contends that the complainant has not demonstrated that she would face a "foreseeable, real and personal" risk of being subjected to torture upon her return to Belarus.
6.3 Under General Comment No.1, whether the complainant has been tortured or ill-treated in the past must be taken into account so as to assess the risk of being subjected to torture upon return to her country. The complainant claims that she was raped several times in 2002, the first time by three police officers as part of an interrogation as to the whereabouts of her husband and the second, as a result of her reporting the first rape to the authorities. She fears that her return would come immediately to the knowledge of the police and that she would be ill-treated again, or even raped. In order to support the claims that she was raped in 2002, she sent to the Committee a medical report dated 4 July 2002 of the 7th urban polyclinic in Minsk. For the State party, it is surprising that the complainant did not present this essential piece of evidence in the ordinary procedure, nor in the procedure for revision before the ARK. According to the complainant, because she was expecting a new interview, she sent this medical report only after reception of the decision of the ARK of 1 December 2004. The State party does not consider this explanation to be convincing. It notes that, on the one hand, the ARK asked the complainant to specify her request for revision and to make it more substantial, and that, on the other hand, the complainant herself replied that she found it necessary to provide the required information in writing. In these circumstances, the State party recalls that the complainant and her husband provided false and/or falsified means of evidence in the ordinary asylum procedure, and that the husband's claim of persecution was considered not credible by the national authorities. It considers that the medical report cannot support the rape allegation.
6.4 According to General Comment No.1, the complainant's previous political activities in the country of origin must be taken into in order to assess the risk of her being subjected to torture upon return to that country. The State party notes that the complainant has not been politically active in Belarus. The sole political activities which were invoked were those of her husband who allegedly stood in the local elections in 1995 and 2000, and criticised the Head of State. The State party concludes that the complainant has not established that she would face a risk of torture because of her own political activities.
6.5 With regard to the credibility of the complainant, the State party notes that she mentions grounds not invoked before the national authorities during the asylum procedure, and that she made reference to the sexual abuses by the police only in her request for revision of 11 October 2004. On explicit request from the ARK, she completed her request for revision on 21 October 2004. It is only on this occasion that she specified that members of the police raped her several times in 2002 and that she was subsequently seriously threatened by the police, notably because she reported the crime. The complainant has never supported her allegations with evidence. According to the complainant, she did not dare mentioning the rapes during the ordinary procedure because her husband forbade her to talk about them. The State party argues that, even though this explanation could be accepted for the period preceding the complainant's separation from her husband, it cannot be considered as convincing for the subsequent period. In particular, it cannot explain why the complainant did not provide any evidence to the ARK during the revision procedure. Furthermore, the evidence provided by the complainant and her husband to support their claims during the asylum procedure were essentially false and/or falsified. In the light of the above, the State party doubts the authenticity of the medical report provided in the present procedure only on 12 March 2005.
6.6 Finally, the State party submits that the complainant's claims are full of factual inconsistencies, which undermines her credibility. According to her, the rapes she was subjected to in 2002 had a direct link with the political activities of her husband. However, the national authorities have found the allegations related to her husband's persecution not to be credible. Since the complainant has always claimed that her husband's activities were the sole cause for her own persecution, these allegations are without any basis.
6.7 The State party concludes that nothing indicates that there are serious grounds to fear that the complainant would be seriously and personally exposed to torture upon her return to Belarus.
Additional comments by the complainant on the State party's submission
7.1 By letter of 28 July 2005, the complainant responds that although she was not an active political figure, she supported the political activities of her husband, and that her belonging to a family where there is opposition to the Government makes her politically active. In response to the State party's contention that she has not mentioned the threat of arrest upon return to Belarus in the initial asylum application, she claims that she had mentioned that risk in her first interview upon arrival in Switzerland on 14 February 2003, but also at several other times. She adds that these comments were sent to the Committee in the annexes to her initial communication.
7.2 The complainant argues that there is a consistent pattern of gross, flagrant or mass violations of human rights in Belarus and that she is thus afraid of facing persecution upon her return. She mentions that opponents to the authorities regularly disappear in Minsk and Vitebsk, and that many people are falsely imprisoned. Regarding the question whether there is a real and personal risk of being subjected to torture upon her return, she recalls that she has received on several occasions specific threats to put her in prison and even, to kill her. She adds that upon her return to Belarus, she would have to go to the police for registration of her personal documents, which is compulsory. Consequently, members of the police would learn immediately that she was back. In order to demonstrate that she faces a real risk of ill-treatment, she recalls that there have been numerous night visits of members of the police to her home, searches, interrogations, acts of violence against her which were corroborated by a medical report and that her political activity consisted in distributing pre-election propaganda materials.
7.3 With regard to the delay in presenting the medical report to the national authorities of the State party, the complainant claims that the report was still in Belarus. When her case was reconsidered, her daughter found the medical report at the complainant's home in Belarus and sent it to the complainant by fax on 17 November 2004.
7.4 With regard to the absence of persecution of the complainant's husband, the complainant argues that the State party is mistaken, and that, if there were no threats against her husband, he would have returned to Belarus. Instead, he is now in Belgium.
7.5 On the issue of credibility of her claims, the complainant explains that in her application for revision dated 11 October 2004, she mentioned only briefly the sexual abuses she had suffered because she was expecting to be called for a new interview. Concerning the availability of means of evidence to support her allegations, she recalls that the complaint she made to the police has been suspended because she had left the country. The documents concerning her complaint are confidential and she cannot have access to them from Switzerland.
Issues and proceedings before the Committee
8.1 Before considering any claim contained in a communication, the Committee against Torture must decide whether or not it is admissible under article 22 of the Convention. The Committee has ascertained, as it is required to do under article 22, paragraph 5 (a), of the Convention, that the same matter has not been, and is not being, examined under another procedure of international investigation or settlement. In the present case, the Committee also notes that all domestic remedies have been exhausted and that the complainant has sufficiently substantiated the facts and her claims, for purposes of admissibility. With regard to the State party's argument that the complainant's letter does not constitute a complaint within the meaning of article 22 of the Convention, the Committee considers that while the complainant does not specifically mention article 3 of the Convention in her initial submission, she has made clear that she should not be returned to Belarus because she faces a risk of further instances of rape by militia authorities upon return. Considering that she was not represented by counsel and in the light of the seriousness of the allegation, the Committee recalls that it has been its constant practice to treat similar communications as complaints within the meaning of article 22 of the Convention. (4) It therefore considers that the communication is admissible and proceeds to an examination on the merits of the case.
8.2 The Committee must determine whether the forced return of the complainant to Belarus would violate the State party's obligations under article 3, paragraph 1, of the Convention not to expel or return ('refouler') an individual to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
8.3 The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Belarus. In assessing this risk, the Committee must take into account all relevant considerations, pursuant to article 3, paragraph 2, of the Convention, including the existence, in the State concerned, of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of its determination is to establish whether the individual concerned would be personally at risk of being subjected to torture in the country to which he or she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her 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 necessarily mean that a person cannot be considered to be in danger of being subjected to torture in his or her specific circumstances.
8.4 The Committee is aware of the poor human rights situation in Belarus. The police alleged to have harassed, sexually abused and raped the complainant acts under the Ministry of the Interior and have been responsible for numerous instances of torture across the country, including against persons who participated in alternative election campaigns. The Special Rapporteur on the situation of human rights in Belarus has noted several attacks on members of the political opposition. (5) The Committee itself has cited numerous allegations of torture and ill-treatment by Belarus authorities, the absence of an independent procurator, the failure to conduct prompt, impartial and full investigations into claims of torture, and the absence of an independent judiciary. (6) The Special Rapporteur on Violence against Women has noted the increasing number of reports of violence against women including rape in Belarus, and the "rather frequent" reports of abuse, including sexual attacks, by female detainees. (7) According to data released by the Belarus Ministry of Labor and Social Security in 2004, over 20 percent of women reported experiencing sexual abuse at least once. In the first ten months of the year 2005, the Ministry of Interior reported a 17 percent increase in reports of rape from the year before. (8)
8.5 The Committee recalls its General Comment on article 3, which states that the Committee is to assess whether there are substantial grounds for believing that the complainant would be in danger of torture if returned, and that the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. The risk need not be highly probable, but it must be personal and present.
8.6 As to the State party's assertion that the earlier finding that some of the original documents submitted in the joint asylum application were falsified, and that this undermines the complainant's credibility, the Committee considers that the evidence that the husband, and not the complainant, was in control of what was presented in support of the original joint asylum application, cuts against attributing responsibility to her for such defects on this basis alone. As to the State party's claim that the medical report from the hospital summarizing and supporting the allegation of rape is also falsified, the Committee notes that the State party concluded this on the sole ground that the earlier documents submitted by the husband in support on the joint asylum application were deemed to be falsified (see para.6.5 above) and has not adduced any further evidence or argument to support this claim. Noting that the date and the detailed information about the severe injury to the complainant's sexual organs by insertion of blunt objects contained in the medical report from Belarus correspond to the information contained in her submissions, the Committee does not question the authenticity of this document.
8.7 As to the State party's argument that the complainant has not established that she would face a risk of torture because of her own political activities, the Committee observes that while the complainant is now separated from her husband, this will not prevent the authorities from harming her. This complainant has explained that she participated in distributing pre-election propaganda when in Belarus. The complainant is now separated but not divorced from her husband; to the authorities, she remains a source of contact and a means of pressuring him. Moreover, according to a recent US State Department Human Rights Country Report, cases of harassment of divorced women because of their former husband's activities are not unknown in Belarus. (9) In any case, while the complainant contends that she was detained and raped the first time because of her husband's political activities in Belarus, the Committee notes that she was raped for a second time because she had made a complaint about the initial rape. Upon return to Belarus, the complainant would thus be at risk of ill-treatment independently of her relationship to her husband. Her report against the police accusing them of night visits, searches, violence and rape could easily make the complainant vulnerable to reprisals by the police anywhere in Belarus. As the Special Representative of the Secretary-General on human rights defenders has argued, women human rights defenders face gender-specific forms of hostility, harassment and repression such as sexual harassment and rape. (10) The police in Belarus function in a highly uniform and hierarchical system with a top-down rule; in current political conditions, it is hard to assess that any one location is safer than another. For all those reasons, the complainant would be of interest to the local police.
8.8 The State party has argued that the complainant is not credible because the allegations of sexual abuse and the medical report supporting these allegations were submitted late in the domestic proceedings. The Committee finds, to the contrary, that the complainant's allegations are credible. The complainant's explanation of the delay in mentioning the rapes to the national authorities is totally reasonable. It is well-known that the loss of privacy and prospect of humiliation based on revelation alone of the acts concerned may cause both women and men to withhold the fact that they have been subject to rape and/or other forms of sexual abuse until it appears absolutely necessary. Particularly for women, there is the additional fear of shaming and rejection by their partner or family members. Here the complainant's allegation that her husband reacted to the complainant's admission of rape by humiliating her and forbidding her to mention it in their asylum proceedings adds credibility to her claim. The Committee notes that as soon as her husband left her, the complainant who was then freed from his influence immediately mentioned the rapes to the national authorities in her request for revision of 11 October 2004. Further evidence of her psychological state or psychological "obstacles," as called for by the State party, is unnecessary. The State party's assertion that the complainant should have raised and substantiated the issue of sexual abuse earlier in the revision proceedings is insufficient basis upon which to find that her allegations of sexual abuse lack credibility, particularly in view of the fact that she was not represented in the proceedings.
8.9 With regard to the State party's argument that there are many inconsistencies in the complainant's claims, the Committee notes that this argument has not been substantiated since the State party has not specified what these inconsistencies were.
8.10 In assessing the risk of torture in the present case, the Committee considers that the complainant was clearly under the physical control of the police even though the acts concerned were perpetrated outside formal detention facilities. The acts concerned, constituting among others multiple rapes, surely constitute infliction of severe pain and suffering perpetrated for a number of impermissible purposes, including interrogation, intimidation, punishment, retaliation, humiliation and discrimination based on gender. Therefore, the Committee believes that the sexual abuse by the police in this case constitutes torture even though it was perpetrated outside formal detention facilities. Moreover, the authorities in Belarus appear to have failed to investigate, prosecute and punish the police for such acts. This failure to act increases the risk of ill-treatment upon the complainant's return to Belarus, since the perpetrators of the rapes have never been investigated and can mistreat the complainant again in all impunity. There is thus substantial doubt, based on the particular facts of this case, as to whether the authorities in Belarus will take the necessary measures to protect the complainant from further harm.
8.11 In the circumstances, the Committee considers that substantial grounds exist for believing that the complainant may risk being subjected to torture if returned to Belarus.
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 Belarus by the State party would constitute a breach of article 3 of the Convention.
10. The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days from the date of the transmittal of this decision, of the steps taken in response to the Views expressed above.
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[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. See Communication No. 94/1997, K.N. v. Switzerland, decision adopted on 19 May 1998, para.10.2.
2. Ibid, para.10.5. See also Communication No. 100/1997, J.U.A. v. Switzerland, decision adopted on 10 November 1998, paras.6.3 and 6.5.
3. See also Communication No. 106/1998, N.P. v. Australia, decision adopted on 6 May 1999, para.6.5.
4. See for instance Communication No.248/2004, A.K. v. Switzerland, decision adopted on 8 May 2006.
5. See the Report of the Special Rapporteur on the situation of human rights in Belarus, Adrian Severin, E/CN.4/2006/36, 16 January 2006, paras.51-54. See also the Report of the Working Group on Arbitrary Detention (Mission to Belarus), E/CN.4/2005/6/Add.3, 25 November 2004, paras.58-60.
6. See Concluding Observations of the Committee against Torture: Belarus, 20 November 2000 (A/56/44, paras.40-46), para.45(d).
7. See the Report of the Special Rapporteur on violence against women, its causes and consequences, Radhika Coomaraswamy: international, regional and national developments in the area of violence against women (1994-2003), E/CN.4/2003/75/Add.1, 27 February 2003, para.1901.
8. As cited in the US Department of State Country Report on human rights practices (2005), 8 March 2006.
9. See the US Department of State Country Report on human rights practices (2005), 8 March 2006.
10. See the Report of the Special Representative of the Secretary-General on human rights defenders, E/CN.4/2002/106, 27 February 2002, para.91.
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