|
The Committee
against Torture , established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 23 November 2001,
Adopts the following:
1.1 The author of the communication, dated 27 April 2000, is Mr. A. R., a
citizen of Bangladesh, born on 6 September 1966, whose application for
refugee status was rejected in Sweden on 19 March 1997. He claims that his
deportation to Bangladesh would constitute a violation by Sweden of article
3 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. He is represented by counsel.
1.2 The State party ratified the Convention on 8 January 1986 and made the
declaration under article 22 of the Convention at the same time.
1.3 In accordance with article 22, paragraph 3 of the Convention, the
Committee transmitted the communication to the State party on 4 October
2000. Pursuant to rule 108, paragraph 9, of the Committee's rules of
procedure, the State party was requested not to deport the petitioner to
Bangladesh pending the consideration of his case by the Committee. In a
submission dated 21 November 2000, the State party informed the Committee
that the petitioner would not be deported to his country of origin while his
communication was under consideration by the Committee.
The Facts as Presented by the Petitioner
2.1 The petitioner states that since the beginning of the 80's, he was
active in the Hindu-Buddha Christian Minority Organization and in the
Bangladesh Chattra League.
2.3 During the autumn of 1992, he was attacked and abused by Muslims and
detained by the police for his participation in a demonstration where he was
allegedly tortured, hit on the soles of his feet and hanged upside down. He
was released with the help of his party and went to India for several
months.
2.4 He returned later to Bangladesh and became active in the Bangladesh
Sharbohara Party (BSP). Beginning 1995, he was again detained during two
months by the police for his participation in a political rally. During this
period, he was allegedly tortured, and he submits a medical and psychiatric
report established in Denmark concerning prior injuries and post-traumatic
stress disorder.
2.5 After having spent another month in India, he returned to Bangladesh and
became responsible for BSP's public relations and publicity.
2.6 The petitioner was then allegedly advised by others members of his party
to leave Bangladesh. The party arranged and financed his flight to Sweden in
October 1995.
2.7 The petitioner arrived in Sweden on 24 October 1995 and applied for
refugee status. His application was rejected by the Swedish Migration Board
on 13 December 1995 and, on appeal, by the Aliens Appeals Board on 19 March
1997.
2.8 Subsequently, the petitioner made three new applications before the
Aliens Appeal Board under Chapter 2, Section 5 (b) of the Swedish Aliens
Act, which allows to resubmit applications before such body on the basis of
factual circumstances that have not been earlier examined by the competent
authorities. The petitioner's applications were all rejected, the latest by
a decision of 9 April 1999.
The Complaint
3.1 The petitioner claims that he was subjected to torture when he was
detained in Bangladesh. He submits some medical evidence in this regard.
3.2 The petitioner claims that if he is returned to Bangladesh, he would be
again subjected to torture and that the decision forcibly to remove him to
Bangladesh would therefore entail a violation of article 3 of the Convention
by the State party.
State Party's Observations on the Admissibility And Merits
4.1 In a submission dated 21 November 2000, the State party made its
observations on the admissibility of the case.
4.2 The State party mainly draws the attention of the Committee to the
condition of the exhaustion of internal remedies and to the fact that the
decision for removal of the petitioner acquired legal force with the
decision of the Aliens Appeals Board of 19 March 1997 and, according to
Chapter 8, Section 15 of the Swedish Aliens Act, has become statute-barred
after 4 years, on 19 March 2001. By the time the Committee would consider
the present communication, the removal decision would therefore no longer be
enforceable [FN1].
---------------------------------------------------------------------------------------------------------------------
[FN1] The State party explains that, under Swedish law, the three new
applications to the Aliens Appeal Board that were made by the author after
19 March 1997 have no incidence on the limitation period.
---------------------------------------------------------------------------------------------------------------------
4.3 The State party thus contends that if the petitioner would still like to
obtain a residence permit in Sweden, he should makea new application to the
Swedish Migration Board, which would have to take into account all
circumstances invoked by the petitioner regardless of whether they have
already been examined [FN2]. The decision would also be appealable to the
Aliens Appeal Board.
---------------------------------------------------------------------------------------------------------------------
[FN2] Such an application would therefore be different in nature from the
one referred to under paragraph 2.8.
---------------------------------------------------------------------------------------------------------------------
4.4 The State party refers in this regard to an earlier decision taken by
the Committee (J.M.U.M. v. Sweden, Communication nr. 58/1996) in which it
decided that the communication was inadmissible for failure of exhaustion of
domestic remedies because the new application that had been filed after that
the original expulsion decision had lost legal force was still pending
before the Swedish Migration Board.
4.5 The State party also considers that the communication could be declared
inadmissible as being incompatible with the provisions of the Convention, in
the sense of article 22, paragraph 2, because there is no longer any
enforceable expulsion order.
Counsel Comments
5.1 In a submission dated 28 December 2000, the petitioner transmitted his
comments on the observations from the State party.
5.2 The petitioner contends that if he had made a new application for
asylum, he would have been taken into custody and the Swedish Migration
Board would have probably taken the decision to remove him to Bangladesh,
even if such a decision had been appealed. The petitioner argues that he has
indeed no chance to be granted refugee status in Sweden because the
situation in Bangladesh has not changed since the decision of 19 March 1997
of the Aliens Appeal Board and the State party's immigration authorities
would be in the same situation as they were originally. Neither has he any
chance to obtain a residence permit on humanitarian grounds for the same
reasons. Rather, he would be blamed for having hidden himself and for not
having complied with the original decision of 19 March 1997.
5.3 The petitioner considers that since the State party has not granted him
refugee status despite the existence of documents proving that he has been
tortured in the past, the only possibility for avoiding a risk of torture in
Bangladesh is a consideration of his case by the Committee.
Additional Comments by State Party
6.1 In a submission of 6 April 2001, the State party reiterates that since
the original decision of 19 March 1997 was no longer enforceable, the
petitioner could make a new application for residence permit, which, as of
the date of the submission, has not yet been done. Moreover, according to
the State party's legislation, the Swedish Migration Board may also take a
decision, appealable before the Aliens Appeal Board, even if the petitioner
does not make such a new application. Such a decision had also not been
taken at the time of the submission.
6.2 The State party reiterates that the communication should be declared
inadmissible for non-exhaustion of domestic remedies. In this regard, the
State party considers, that contrary to the petitioner's suggestion, such a
new application would be effective to the extent that the Swedish Migration
Board would have to take into account new circumstances as well as the one
presented before. The petitioner would thus legally be in the same position
as when he made is original application. Among the grounds on which he could
base his new application are the risks of being subjected to torture if is
returned to his native country, humanitarian grounds, his state of health,
and the links he has established with the Swedish society. In this respect,
the State party notes that the petitioner has been staying in Sweden for
more than five years and, according to available information, would have
married a Swedish citizen in 1996.
6.3 Finally, the State party underlines that a direct enforcement of the
Swedish Migration Board, without allowing reconsideration on appeal, is
possible only in cases where it is obvious that there are no grounds for
granting a residence permit. Moreover, if the petitioner has resided in
Sweden for more that three months after his first application, such a direct
enforcement, which is also appealable to the Alien Appeal Board, could only
take place in the presence of exceptional grounds, such as if the petitioner
had committed crimes in Sweden. The State party is therefore of the opinion
that a direct enforcement is unlikely in the petitioner's case.
Issues and Proceedings Before the Committee
7.1 The Committee considers that, in the present case, the principle of
exhaustion of internal remedies requires the petitioner to use remedies that
are directly related to the risk of torture under article 3 of the
Convention. The Committee is therefore of the opinion that the elements that
are totally unrelated to the allegations of torture, such as his situation
in Sweden and the fact that he has married with a Swedish citizen are not
within the scope of those that should be addressed in a remedy that has to
be exhausted in order to meet the requirements of article 22, paragraph 5
(b) of the Convention.
7.2 Nevertheless, the Committee has been informed that the petitioner has
submitted a new application for residence permit on 6 June 2001, which may
be decided, inter alia, on the grounds of a risk of torture in his country
of origin. The Committee finds therefore that the author has not exhausted
domestic remedies.
8. The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision may be reviewed under rule 109 of the Committee's
rules of procedure upon receipt of a request by or on behalf of the
petitioner containing information to the effect that the reasons for
inadmissibility no longer apply;
(c) That this decision shall be communicated to the State party, the
petitioner and his representative.
[Done in English, French, Russian and Spanish, the English being the
original version.]
|
|