Submitted by : I. A. O. (name withheld) [represented by counsel]

Alleged victim: The author

State party: Sweden

Date of communication: 21 March 1997

Date of admissibility decision: 25 November 1997

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

Meeting on 6 May 1998,

Having concluded its consideration of communication No. 65/1997, submitted to the Committee against Torture 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 author of the communication, his counsel and the State party,

Adopts its Views under article 22, paragraph 7, of the Convention.

1. The author of the communication is I. A. O. (born on 29 May 1966), a Djibouti citizen and member of the Afar ethnic group, currently seeking asylum in Sweden. He claims that his return to Djibouti would constitute a violation of article 3 of the Convention against Torture by Sweden. He is represented by the Advisory Centre for Asylum Seekers and Refugees.

2.1 The author is described as a publicist who has written articles criticizing the political situation in Djibouti, in particular the mistreatment of the Afar ethnic group by the politically dominant Issa ethnic group. He maintains that since coming to Sweden he has continued his publicist work critical of the current government, and is thus still considered to be a significant enemy to the regime.

2.2 He states that he became politically active when he was a student living in Morocco between 1987 and 1989, and that he expressed his views writing for a student magazine. In 1989, he moved to the Libyan Arab Jamahiriya to continue his studies. While there he states that he organized supply transports, financed by Libyan interests, to the Front for Restoration of Unity and Democracy (FRUD, previously AROD)in Djibouti.

2.3 The author states that he returned to Djibouti on 14 January 1991 and that he was stopped and arrested by security service agents after leaving the airport. He says that he was taken to the Nagad prison and interrogated regarding his involvement with the Afar-led FRUD. He says that he was then taken to the interrogation centre Villa de Christianos where he was tortured to force a confession regarding his political associations and activities. He claims to have been subjected to electrical shocks and beatings with a nail-studded stick. Because of his weakened physical condition resulting from this treatment, he says that the security service left him outside of a medical clinic. It is certified that he was hospitalized from 20 to 30 January 1991. A certificate dated 2 September 1995, signed by Dr. Bourhan of the Clinique Ibn-Sina, states that the author was hospitalized twice, for the dates 20–30 January and 11–20 February 1991, as a result of the violence inflicted upon him during incarceration.

2.4 According to the author, upon his release from the hospital, on 30 January 1991, he was picked up for more interrogation. This time he was accused of betraying the Government and was interrogated about his political activities abroad. He alleges that he was tortured by being forced to sit on a glass bottle with a broken bottle neck, having a wire inserted into his penis, having heavy weights hung from his penis and scrotum, being burned with cigarettes and cigars, being cut with a razor, and being forced to lay in a bathtub with water dripping at a fixed point on his head. He says that he was released after nine days of imprisonment and it is certified that he was hospitalized from 11 to 20 February 1991.

2.5 He claims that he was arrested, for an unspecified reason, on 14 April 1991 and held in prison until 1 July 1991. While he says that he was not tortured during this imprisonment, he claims that he was kept for a period of time in a cell flooded with sewage water. He says that he was interrogated throughout this incarceration about his political activities, and was offered a diplomatic position abroad in exchange for altering his political views.

2.6 The author claims that he was arrested again on 7 August 1991 while helping to unload a delivery of weapons intended for FRUD, and that he was held in detention until 20 August 1991. He states that during this detention he was interrogated and beaten frequently.

2.7 During his periods of freedom the author claims that he was under surveillance by the security service, that he was interrogated several times, and that his home was searched.

2.8 He states that he was able to obtain a national passport and a Swedish visa with assistance of a lawyer and of Abdalla Kamil, the former Prime Minister of Djibouti. He claims that Kamil also negotiated with the Djibouti airport police to facilitate his passage through immigration control. He left Djibouti on 25 September 1991 arriving in Stockholm via Moscow on 26 September 1991. Upon his arrival in Stockholm, he immediately presented himself to the airport police and requested Swedish asylum.

2.9 On 4 and 5 December 1991 he had a more comprehensive interview with police authorities at Carlslund Refugee Reception Centre. At the time he described his political activities, the actions against him by the Djibouti Government and his detentions. He claims that the investigating officer did not question him about torture so he only briefly mentioned the subject. The author's counsel notes that his client was not represented by counsel at this interview.

2.10 It is submitted that the author was granted legal aid and a counsel to assist him in the asylum process. The Immigration Board rejected the author's application on 16 November 1992 and ordered that he be expelled from Sweden. It is submitted by counsel that the Board, which had been given copies of his political writings, did not find the character of the author's political involvement such that his fear of persecution was well-founded.

2.11 The Immigration Board decision was appealed on 14 December 1992 to the Aliens Appeals Board. It is stated that the appeal underscored the author's torture experiences and included a certificate from Dr. Hans Söderlund, dated 17 February 1993, corroborating his claims. According to the author, the medical report states that the author exhibited emotional distress when describing his experiences in Djibouti, and identifies scars which could be the result of physical violence.

2.12 The appeal was ultimately rejected on 29 September 1995. It is submitted that the Aliens Appeals Board based its decision in part on information from the United States Department of State's Djibouti Country Report on Human Rights Practices which reported that the general political situation in Djibouti had improved since the accord between FRUD and the Djibouti Government in December 1994. In 1994, the Djibouti Government and FRUD signed a peace accord ending three years of civil war. In March 1995, FRUD was legalized and in 1996 it was registered as a political party. It is submitted by his counsel that the Board also found the author's account of his personal situation not credible, doubting that the Djibouti authorities could know about his activities against the regime and still release him from prison several times, and doubting that he would be offered a diplomatic post if the authorities considered him to be a great threat to the regime. Following the rejection of his appeal the author went into hiding.

2.13 It is stated that, on 6 September 1996, the author submitted a new application for a residence permit to the Aliens Appeals Board. Included was documentation of forensic and psychiatric examinations at the Centre for Torture and Trauma Survivors (Centrum för Tortyr och Traumaskadade – CTD) and a certificate of his hospitalization in 1991 at the Ibin-Sina clinic. Psychiatric record, dated 9 September 1996, in Swedish, by Dr. Hans Peter Sondergard of CTD. Forensic medical record, dated 9 September 1996, in Swedish, by Dr. Erik Edston of CTD. Copies of records provided. According to the psychiatric examination the author exhibits symptoms of post-traumatic stress disorder. The forensic examination identifies several scars which are consistent with his torture claims.

2.14 It is stated by counsel that on 16 September 1996 the Aliens Appeals Board revoked the deportation order against the author and granted him a personal hearing on 7 November 1996 where he was represented by counsel. According to the author, on 10 December 1996, the Board rejected his new application and reinstated the deportation order. It is submitted that the Board supported its decision by citing inconsistencies in statements by the author about how he received his injuries and from the fact that he had waited until the rejection of his first application to document his torture history for the Board. Further, it is stated that the Board did not find credible his assertions of continued political writing since arriving in Sweden.

2.15 On 1 January 1997, the author resubmitted his application requesting that it be reviewed in the context of changes to the Swedish Aliens Act, effective 1 January 1997. The author's counsel states that on 10 February 1997 the Board rejected this application holding that there could be no reconsideration of previously examined circumstances, and further that the new legislation was of no significance to the case.

2.16 His counsel indicates that inconsistencies in the author's story have been attributable to post-traumatic stress disorder, and that his delay in recounting the torture incidents was attributable to illness (tuberculosis) and cultural differences between himself and the Swedish interrogators at the airport and later, at the Carlslund Refugee Reception Centre.

The complaint

3.1 The author claims that the standpoint of the Aliens Appeals Board on the political situation in Djibouti is a misinterpretation of the actual circumstances. According to him, the peace agreement referred to is only between the regime and a minor faction of FRUD, and the overwhelming part of FRUD continues its political and military struggle against the regime. He asserts that politically active Afars are arrested on a large scale and that they suffer torture and other inhumane treatments. Further, he claims that the regime also takes actions against the ordinary Afar population, for example, subjecting Afars to constant police surveillance.

3.2 The author maintains that since coming to Sweden he has continued his publicist work against the current government, and is thus considered to be a significant enemy to the regime. He states that the Djibouti authorities are aware that he is staying in Sweden, and are unhappy with his depiction of Djibouti in his writings. Therefore, he contends that he will face detention, torture and other cruel and degrading treatment if he is forced to return to Djibouti.

State party's observations

4. On 14 April 1997, the Committee, acting through its Special Rapporteur for New Communications, transmitted the communication to the State party for comments and requested the State party not to expel the author while his communication was under consideration by the Committee.

5.1 By submission of 1 July 1997, the State party challenges the admissibility of the communication but also addresses the merits of the case. It requests the Committee, should it not find the communication inadmissible, to examine the communication on its merits as soon as possible. It informs the Committee that the Immigration Board has stayed the enforcement of the expulsion order, pending the Committee's final decision in the matter.

5.2 As regards the domestic procedure, the State party explains that the basic provisions concerning the right of aliens to enter or to remain in Sweden are contained in the 1989 Aliens Act. For the determination of refugee status there are two instances, the Swedish Immigration Board and the Aliens Appeals Board. In exceptional cases, the application can be referred to the Government by either of the two Boards. In this context, the State party explains that the Government has no jurisdiction of its own in cases not referred to it by the Boards. Such cases are determined by the Boards independently. The State party clarifies that the Swedish Constitution prohibits any interference by the Government, the Parliament or any other public authority in the decision making of an administrative authority in a particular case. According to the State party, an administrative authority as the Immigration Board or the Aliens Appeals Board enjoys the same independence as a court of law in this respect.

5.3 As of 1 January 1997, the Aliens Act has been amended. According to the amended Act (chap. 3, sect. 4, in conjunction with sect. 3) an alien is entitled to a residence permit if he or she experiences a well-founded fear of being subjected to the death penalty or to corporal punishment or to torture or other inhuman or degrading treatment or punishment. Under chapter 2, section 5(b), of the Act, an alien who is refused entry, can apply for a residence permit if the application is based on circumstances which have not previously been examined in the case and if either the alien is entitled to asylum in Sweden or if it will otherwise be in conflict with humanitarian requirements to enforce the decision on refusal of entry or expulsion. New circumstances cannot be assessed by the authority ex officio but only upon application.

5.4 Chapter 8, section 1, of the Act provides that an alien who has been refused entry or who shall be expelled may never be sent back to a country where there is a reasonable cause to believe that he would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment, nor to a country where he is not protected from being sent on to a country where he would be in such a danger.

5.5 As to the admissibility of the communication, the State party submits that it is not aware of the same matter having been presented to another international instance of international investigation or settlement. The State party explains that the author can at any time lodge a new application for re-examination of his case to the Aliens Appeals Board, based on new factual circumstances. Finally, the State party contends that the communication is inadmissible as being incompatible with the provisions of the Convention.

5.6 As to the merits of the communication, the State party refers to the Committee's prior jurisprudence, and the criteria established by the Committee. In this context, the State party submits that the relevant provisions in the Aliens Act reflect exactly the same principle as laid down in article 3 of the Convention. The State party recalls that the mere possibility that a person will be subjected to ill-treatment in his or her country of origin does not suffice to prohibit his or her return as being incompatible with article 3 of the Convention.

5.7 In the instant case, the Immigration Board considered that the information submitted concerning the author's political position and the extent and nature of his alleged activity did not support the finding that he had cause for a well-founded fear of persecution. In its rejection of the author's appeal, the Aliens Appeals Board found that the information submitted by the author lacked credibility and moreover, that, even if the information was accepted as truthful, it did not show that he would risk being subjected to persecution or that he would be entitled to asylum. The author's new application was rejected by the Aliens Appeals Board on 10 December 1996. It found unsubstantiated the author's claims that he had not been able to understand the interpreters used at the hearings and that his counsel had not devoted enough time to the case. It further noted that the author has submitted contradictory information about the times he had spent in detention and about the cause of the marks on his body.

5.8 The State party emphasizes that the Aliens Appeals Board had the benefit of an oral hearing and that it based its opinion also on its first hand impression of the author. According to the State party, this gives the Board such an advantage that the Committee should allow the Board a certain margin of appreciation when it subsequently evaluates the Board's decision.

5.9 The State party bases itself on the findings of the Immigration Board and Aliens Appeals Board and points out inconsistencies in the author's story in relation to the periods of detention and argues that it is unlikely that the author was offered a high diplomatic post if he was perceived as a threat to the Government. According to the State party, the inconsistencies and peculiarities of the author's story significantly affect its veracity and on the credibility of his claims, including the claim that he has been tortured. On the basis of the above, the State party contends that the evidence presented by the author is insufficient to demonstrate that the risk of being tortured is a foreseeable and necessary consequence of his return to Djibouti. According to the State party, there is no evidence that the author's alleged political activities render him a target of persecution by the Djibouti authorities.

5.10 By way of conclusion, the State party notes that the Committee has found violations of article 3 in all the cases against Sweden which it so far examined on the merits. In this context, the State party points out that its immigration authorities have a considerable experience with the examination and determination of cases of this nature, involving difficult assessments as regards the credibility of the information submitted. Moreover, they have a considerable knowledge about the human rights situations in different countries. The State party also recalls that the test applied by the European Commission of Human Rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is in principle the same as the one applied by the Committee under article 3 of the Convention against Torture. However, the European Commission has declared inadmissible most complaints against Sweden as manifestly ill-founded.

5.11 The State party expresses its concern about a possible development of different standards under the two human rights instruments of essentially the same right. The State party argues that diverging standards in this respect would create serious problems for States which have declared themselves bound by both instruments. Problems would arise when States attempt to adapt themselves to international case-law, if this case-law is inconsistent. According to the State party, inconsistent case-law may also have serious detrimental effects on the overall credibility of the human rights protection system at international level.

Counsel's comments

6.1 In his comments on the State party's submission, counsel points out that Djibouti is not a party to the Convention against Torture and that consequently its Government is not even willing to give an image of respecting human rights. According to counsel, this is an additional reason for believing that the author will be tortured upon his return.

6.2 Counsel explains that there is no possibility of a further new application to the Aliens Appeals Board, because no factual new circumstances exist in the author's case. He maintains that all domestic remedies have been exhausted.

6.3 As to the merits, counsel contends that the human rights situation in Djibouti raises serious concerns. He explains that the political situation is characterized by the tension between the two main ethnical groups, the Issas and the Afars. After many years of struggle, a peace treaty between FRUD and the Government was signed in December 1994, but according to counsel, a large majority of FRUD continued its political resistance. Counsel submits that the Government discriminates against the Afar population in general and oppresses political active opponents in particular. According to counsel, the situation in Djibouti amounts to a consistent pattern of gross, flagrant, or mass violations of human rights.

6.4 Counsel acknowledges that a serious human rights situation as such does not constitute a sufficient ground for determining that a person will be at risk of being tortured if returned. According to counsel however, in Djibouti prerequisite political and social conditions exist that make it indeed likely that torture would occur.

6.5 Counsel acknowledges that the Swedish legislation reflects essentially the same test as article 3 of the Convention, but argues that there is no indication that this test was indeed applied in the author's case.

6.6 Counsel explains that the author has been confusing what happened at which hearings, and that this explains the inconsistencies of his claims concerning the interpretation. Counsel states that the author suffers psychological trauma and that his confusion is understandable and cannot be considered as affecting his credibility. Counsel maintains that the time spent by the author's legal representative in preparation of the hearing of his case before the Immigration Board was minimal and that his case was therefore not fully presented.

6.7 As regards the inconsistencies in the author's story, counsel explains that these are caused by the difficulties the author was facing in trying to adapt to a new society, whereas suffering the consequences of torture. Counsel contends that the authorities lacked understanding for the author's situation. He stresses that the author suffers from a post-traumatic stress disorder and that this explains the inconsistencies in his story and his gaps of memory. In this context, counsel refers to the Committee's prior jurisprudence.

6.8 As regards the offer to give him a diplomatic post, counsel explains that the Government in Djibouti has on numerous occasions tried to win over opponents by offering them high posts and that it needs educated collaborators.

6.9 Counsel refers to the medical evidence and submits that there is no doubt that the author has been tortured. He asserts that in view of the past, continued detention, torture and other ill-treatment is the necessary and foreseeable consequence of the author's forced return to Djibouti.

6.10 As regards the State party's argument that its immigration authorities have a lot of experience in handling asylum cases, counsel submits that the authorities tend not to accept incoherent and contradictory statements from persons who have been subjected to torture, although testimony from experts in the field demonstrate that these inconsistencies are the result of the effects of the torture on the person. According to counsel, most immigration officials have little understanding of these problems and don't follow regular training programmes. As regards the availability of information, although information from non-governmental organizations is available, officials prefer to rely on information available through diplomatic channels. Counsel concludes that the standard applied by the State party is not as high as it claims.

6.11 As regards the State party's argument in relation to possible diverging case-law by the European Commission of Human Rights and the Committee against Torture, counsel submits that these bodies are independent of each other and work in a different context. Counsel disagrees with the State party's concerns and states that, if a different standard is applied by the two bodies, all the State party has to do is to apply the stricter of the two.

The Committee's admissibility decision

7. At its nineteenth session, the Committee examined the admissibility of the communication. It noted with appreciation the information given by the State party that the Immigration Board has stayed the enforcement of the expulsion order against the author, pending the Committee's final decision.

8. The Committee ascertained, as it was required to do under article 22, paragraph 5(a), of the Convention, that the same matter had not been and was not being examined under another procedure of international investigation or settlement. The Committee was further of the opinion that all available domestic remedies had been exhausted, in view of the fact that no new circumstances existed on the basis of which the author could have filed a new application with the Aliens Appeals Board. The Committee found that no further obstacles to the admissibility of the communication existed.

9. The Committee noted that both the State party and the author's counsel had forwarded observations on the merits of the communication, and that the State party had requested the Committee, if it were to find the communication admissible, to proceed to the examination of the merits of the communication. Nevertheless, the Committee considered that the information before it was not sufficient to enable it to adopt its Views.

10. In particular, the Committee wished to receive from the author's counsel more precise and detailed information concerning the character and frequency of the author's publications, the nature of his political activities as well as his reasons to believe that he will be subjected to torture upon his return to Djibouti. Likewise, the Committee wished to receive information from the State party concerning its statement that the human rights situation in Djibouti had improved since the peace accord of December 1994, and how this would affect the author's situation if he were to return.

11. Accordingly, on 20 November 1997, the Committee against Torture decided that the communication was admissible, and requested the State party and the author's counsel to submit their observations on the above questions so as to allow the Committee to examine the merits of the communication at its next (twentieth) session.

Parties' replies to the Committee's decision on admissibility

12.1 By note of 28 January 1998, the State party points out that it never suggested that the human rights situation in Djibouti had improved since the peace accord of 1994, but, on the contrary, that the general situation of human rights in Djibouti leaves much to be desired. It recalls that its arguments concerning the merits of the author's communication were mainly based on his credibility rather than on the human rights situation in Djibouti. The State party refers to its earlier submission and maintains that the inconsistencies and peculiarities in the author's story impact on its veracity and credibility.

12.2 The State party points out that, although the situation of human rights in Djibouti is far from satisfactory, the freedom of the press in the country is generally respected, and that the opposition issues weekly and monthly publications which are publicly critical of the regime.

13.1 By letter of 19 February 1998, counsel for the author states that the author did not publicly express any political opinion before he left Djibouti in 1987. He provides additional information about the author's activities between 1987 (when he left for Morocco) and his return to Djibouti in January 1991. After his return to Djibouti, he maintained contacts with Afar opponents of the Government and participated in the planning of political demonstrations and other political activities.

13.2 With regard to the nature of the author's publications, counsel explains that in Morocco, he published six issues of a newspaper for Afar students which dealt with the question of discrimination of Afar students in the educational system of Djibouti. During his time abroad, the author also worked on an essay on the history of Djibouti.

13.3 After his departure from Djibouti in September 1991, the author wrote articles about the political situation in Djibouti which were published in different European-based Arabic newspapers. According to a list provided by the author's counsel, he published: in 1991, one letter to the editor; in 1992, three letters to the editor; in 1993, one two-page article and one letter to the editor; in 1994, one letter to the editor; in 1995, one letter to the editor and two commentaries; in 1996, two letters to the editor; in 1997, one article and one letter to the editor. He continued to support the FRUD and opposed the Government, the 1994 peace accord and the human rights situation in Djibouti. It is stated that two of the newspapers in which the author published, are being distributed all over the Arabic-speaking world, including Djibouti.

13.4 With regard to the author's belief that he will be subjected to torture upon return to Djibouti, counsel recalls that the human rights situation is still very poor, and refers in this context to the United States State Department report on Djibouti. The Afar resistance is still opposing the Government and in autumn 1997, FRUD reopened its military campaign. A number of FRUD officials have been arrested in September 1997. Counsel submits that the author belongs to the oppressed Afar group, that he has made his views public, that he has been arrested and tortured in 1991, that he has participated in political activities and that he has published articles attacking the Government. According to counsel, it is likely that the Djibouti authorities are aware of the author's publications and that it is important to them to neutralize him. In the light of the present political situation and the lack of respect for human rights in Djibouti, counsel argues that a substantial and serious risk exists that the author, when returned to Djibouti, will once again be subjected to torture.

Issues and proceedings before the Committee

14.1 The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22, paragraph 4, of the Convention.

14.2 The Committee must decide, pursuant to paragraph 1 of article 3, whether there are substantial grounds for believing that the author would be in danger of being subjected to torture upon return to Djibouti. In reaching this decision, the Committee must take into account all relevant considerations, pursuant to paragraph 2 of article 3, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The aim of the determination, however, 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 return to that country; additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, 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.

14.3 The Committee has noted the medical evidence provided by the author, and on this basis is of the opinion that there is firm reason to believe that the author has been tortured in the past. In this context, the Committee observes that the author suffers from a post-traumatic stress disorder, and that this has to be taken into account when assessing the author's presentation of the facts. The Committee is therefore of the opinion that the inconsistencies as exist in the author's story do not raise doubts as to the general veracity of his claim that he was detained and tortured.

14.4 The Committee further notes that the author was detained in 1991, allegedly because he had published articles abroad, criticizing the Government. The author has stated that he has continued to publish articles about Djibouti, and that he therefore continues to be at risk of being detained and tortured when returned to Djibouti. The Committee notes that the State party's immigration authorities were of the opinion that the author's writings were not of such character as to endanger him upon his return. The author has provided a list of his publications in Arabic-language magazines, in which he has criticized the Government for its policies and denounced the discriminatory treatment of Afars. There is no indication that the author is otherwise politically active against the Government of Djibouti.

14.5 The Committee is aware of reported human rights violations in Djibouti, but has no information which would allow it to conclude that a consistent pattern of gross, flagrant or mass violations of human rights exists in Djibouti. According to the information available to the Committee, although journalists are occasionally jailed or intimidated by police, they do not appear to be among the groups that are targeted for repression and opposition periodicals circulate freely and openly criticise the Government. The Committee also notes that no reports of torture exist with regard to the FRUD officials who were detained in September 1997. The Committee recalls that, for the purposes of article 3 of the Convention, a foreseeable, real and personal risk must exist of being subjected to torture in the country to which a person is returned. On the basis of the considerations above, the Committee is of the opinion that such risk has not been established. In this connection, the Committee notes that a risk of being detained as such is not sufficient to trigger the protection of article 3 of the Convention.

14.6 The Committee considers that the information before it does not show that substantial grounds exist for believing that the author will be in danger of being subjected to torture if he is returned to Djibouti.

15. The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is of the view that the facts as found by the Committee do not reveal a breach of article 3 of the Convention.

[Done in English, French, Russian and Spanish, the English text being the original version.]