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The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 10 November 1998,
Having concluded its consideration of communication No. 100/1997, 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 the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is J.U.A., a Nigerian citizen born in
1968. He is currently living in Switzerland, where he has applied for
asylum, and risks being sent home. He claims that his expulsion would
constitute a violation of article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Facts as Submitted by the Author
2.1 The author claims that he is a member of NADECO (National Democratic
Coalition), the opposition movement. In 1994, he took part in an action
committee opposing the plan to hold the Junior World Cup for Football in
Lagos, which in his view was an act of political propaganda by the then
Government of Nigeria. He contacted some key figures and university leaders
with a view to organizing demonstrations in a number of towns, including
Enugu, where he grew up. In February 1995, a police officer who was a friend
of his father's warned him that the Lagos police had issued a warrant for
his arrest because of his activities in opposition to the championship.
After learning of the warrant for his arrest, the author, who normally lived
in Lagos, went to the town of Epe, where he hid for several months before
his departure for Europe.
2.2 On 14 August 1995, the author filed an application for asylum in
Switzerland, which was rejected on 28 May 1996 by the Federal Office for
Refugees (Office F�d�ral des r�fugi�s - ODR). On 23 September 1997, his
appeal was rejected by the Appeal Commission (Commission suisse de recours
en mati�re d'asile - CRA). A request for revision, filed on 6 November 1997,
was rejected by CRA on 18 November 1997.
2.3 By way of evidence, the author produced the warrant for his arrest, a
document which he claims to have obtained from Nigeria. The Swiss
authorities considered the document to be a forgery. The author states that
he was unaware of this and that he was acquitted by the St. Gallen district
court of the charge of falsifying documents. He likewise points out that the
Swiss authorities never contacted any of the persons with whom he worked on
preparations for the demonstrations in Nigeria, nor the police officer
mentioned above, despite the fact that he provided them with the officer's
name and address. In addition, he states that he was not allowed to see the
report about his case drawn up by the Swiss Embassy in Lagos, and received
only a summary. Finally, he claims that, during his two hearings with the
Swiss immigration authorities, he gave the same version of the events that
had prompted his departure from Nigeria.
The Complaint
3.1 The author points out that the Swiss authorities have not granted asylum
to anyone from Nigeria since 1991, despite the fact that some 100
applications are filed every year. He claims that prisoners are
systematically tortured in Nigeria, and that rejected asylum-seekers are
arrested on their return. In view of his experiences in Nigeria, and of his
activities in Switzerland to promote human rights in Nigeria, including the
items he has published in Planet�, Ostschweiz and St. Galler Tagblatt, as
well as his participation in various demonstrations, he risks being
persecuted by the Nigerian authorities if he is sent back. He would in all
likelihood be arrested and held under threat of torture.
The State Party's Observations on the Admissibility and Merits of the
Communication
4.1 By letter dated 19 February 1998, the State party informs the Committee
that, pursuant to its request under rule 108 (9) of the Committee's rules of
procedure, the authorities have decided to defer sending back the author for
so long as his communication is pending before the Committee. The State
party also points out that the author has exhausted domestic remedies, and
does not contest the admissibility of the communication.
4.2 With regard to the merits, the State party observes that the author
filed an application for asylum which was rejected by ODR, inter alia,
because he had not succeeded in credibly establishing that he belonged to
NADECO. Other grounds for CRA's rejection of his appeal and his request for
revision were that the author's allegations, in particular concerning the
reasons for his departure from his country of origin, were not sufficiently
plausible and that the author's fear that he would be persecuted by the
Nigerian authorities for his political activities in exile were unfounded.
4.3 Following ODR's decision to reject the application for asylum,
particularly on the ground that the allegations that he was wanted by the
police were based on two forged arrest warrants, criminal proceedings were
brought by the authorities of the canton of St. Gallen for falsification of
documents, resulting in the author's acquittal. In its acquittal decision,
the court deemed that the non-authentic nature of the documents had not been
proved. The court stated that, for the purposes of rendering a decision, it
lacked material for a comparison, and considered that ODR had failed to
satisfy the requirements of criminal law by not consulting an independent
expert.
4.4 The State party argues that the requirements regarding proof differ,
depending on whether proceedings are criminal or administrative, and that
the criminal decision of the district court by no means constituted a
finding that the documents in question were authentic. The decision was
substantiated only briefly. It was entirely unclear on what basis the court
differed from ODR's findings regarding the ample proof of falsification. The
procedure followed by ODR in the case in point was altogether normal and
compatible with law, jurisprudence and practice. It was based on the
experience and knowledge of the Office, which keeps documentation of its own
on the countries of origin of asylum-seekers.
4.5 The arguments presented to the Committee by the author have already been
adduced before the Swiss authorities and have been examined by ODR and CRA.
The author first attempted to prove that he was wanted by the police,
invoking two arrest warrants which in the view of ODR are forgeries.
Secondly, to support his claim that he was afraid of arrest, he furnished a
list of members of NADECO who had allegedly been arrested, and on which his
own name appears; according to information obtained by the Swiss Embassy in
Lagos, however, that list did not conform to reality. In fact, most of the
individuals whose names appear on it, and who according to the author have
been detained, are not in detention. According to the same sources, the
author's name was unknown in the inner circles of NADECO, nor was he sought
by the police. Furthermore, the author failed to produce, during the asylum
process, any reliable official document of attestation, with the result that
his identity is not established with certainty.
4.6 In addition, the author's statements contained a number of
discrepancies. With regard, for example, to Epe Town, the place where he is
said to have hidden before leaving the country, he provided two different
accounts of its geographical location, in Lagos and near Enugu, although
those two cities are 500 kilometres apart.
4.7 The author also contends that he risks persecution for his commitment to
respect for human rights in Nigeria - political activities in which he has
participated since his arrival in Switzerland. In the view of the State
party, however, there is insufficient reason to believe that the Nigerian
authorities would pay much attention to such opinions, or want to pursue the
author on that basis, since his views are mild in comparison to the
criticisms levelled at the regime by the Nigerian press or by the opposition
in exile, if in fact the Nigerian authorities are even aware of the author's
articles, considering the small circulation of the publications in question.
4.8 Finally, the contention that Nigerian asylum-seekers in general, and the
author in particular as an asylum-seeker, are arrested on their return is
unfounded, according to reliable sources available to the Swiss asylum
authorities. No properly substantiated case has been reported that supports
the notion that rejected asylum-seekers are systematically persecuted simply
for filing an application for asylum.
4.9 Having carefully examined the case in question as well as the situation
in the country of origin, the State party consequently considers that there
are no substantial grounds for believing that the author would risk being
subjected to torture if he returned to Nigeria.
Author's Comments
5.1 The author stresses that, despite the brutality of the political regime
in Nigeria, the Swiss authorities have systematically rejected all asylum
applications by Nigerian citizens for at least seven years now. As for the
matter of discrepancies in his statements, he contends that he has
consistently said that he went to Epe after learning of the warrant for his
arrest, which confirms his credibility.
5.2 It has not been established that the documents he submitted were forged.
The decision of the district court was substantiated only briefly because
the court suggested that the author should forego a detailed statement of
the grounds, but the proceedings themselves were not conducted in a summary
manner.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in the 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. The Committee also notes that
all domestic remedies have been exhausted, and finds there are no further
obstacles to its declaring the communication admissible. Since the State
party and the author have both made comments regarding the substance of the
communication, the Committee will proceed to consider the communication on
its merits.
6.2 The Committee must decide whether sending the author back to Nigeria
would violate the State party's obligation under article 3 of the Convention
not to expel or return (refouler) an individual to another State if there
are substantial grounds to believe that he would be in danger of being
subjected to torture.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the author would be in
danger of being tortured if sent back to Nigeria. To do so, it must take
account of all relevant considerations as called for by article 3, paragraph
2, including the existence of a consistent pattern of gross, flagrant or
mass violations of human rights. The aim, however, is to determine whether
the individual concerned would personally risk 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 sufficient grounds 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. 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 particular circumstances.
6.4 In the case in point, the Committee notes that the author has never been
arrested or subjected to torture. Nor has the author claimed that persons in
his immediate circle or individuals who participated in the events which
according to him were the reason for his departure from the country were
arrested or tortured. Furthermore, it has not been clearly established that
the author continues to be sought by the Nigerian police or that the arrest
warrant he furnished is an authentic document. Finally, the author has not
cited specific cases of individuals alleged to have been tortured in Nigeria
after being rejected by countries from which they had requested asylum.
6.5 The Committee notes with concern the numerous reports of human rights
violations, including the use of torture, in Nigeria, but recalls that, for
the purposes of article 3 of the Convention, the individual concerned must
face a foreseeable, real and personal risk of being tortured in the country
to which he is returned. In the light of the foregoing, the Committee deems
that such a risk has not been established.
6.6 On the basis of the above considerations, the Committee considers that
the information before it does not show substantial grounds for believing
that the author runs a personal risk of being tortured if he is sent back to
Nigeria.
7. 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 facts before it do not indicate
a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the French text being the
original version.]
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