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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 30 April 2002,
Having concluded its consideration of complaint No. 179/2001, 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.
1.1 The complainant is B.M., a citizen of Tunisia, currently awaiting
deportation in Sweden. He claims that his removal to Tunisia 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 On 11 April 2001, the Committee forwarded the complaint to the State
party for comments and requested, under rule 108 of the Committee's rules of
procedure, not to return the complainant to Tunisia while his complaint was
under consideration by the Committee. The State party acceded to this
request.
Facts as Presented by the Complainant
2.1 The complainant lived and worked in Saudi Arabia from 1983 to 1998.
During this period, he was very active in the Muslim community, holding
religious discussions with other Muslims and collecting money for the poor
and for the families of imprisoned members of the Al-Nadha Party in Tunisia.
The complainant is not a member of that party but an active supporter. He
states that all Muslim organizations in Tunisia are considered to be working
politically against the Tunisian regime, including the Al-Nadha Party.
2.2 In 1989, 1990 and 1992, while the complainant was till residing in Saudi
Arabia, he made several visits to Tunisia. His first visit in 1989 was to
arrange his marriage contract. He was arrested at the airport, detained and
interrogated in prison and then brought before the "Al-Kassabah" court where
he was forced to sign a confession stating that he adhered to Wahhabism,
which is the interpretation of Islam practised in Saudi Arabia. The
complainant was allegedly tortured during the interrogation.
2.3 In 1990, the complainant entered Tunisia again in order to marry. He was
again arrested at the airport, interrogated, accused again of being a
Wahhabi and then released. In 1992, the complainant and his wife went to
Tunisia together. They were arrested at the airport and interrogated about
the complainant's activities and religious ideas. He was again accused of
being a Wahhabi and of collecting money for the families of men imprisoned
for activities against the Tunisian regime. After interrogation they were
released, but a travel ban was issued. A few days later, uniformed and
civilian police forcibly entered the house where they were staying. The
police forcibly removed the veil of the complainant's wife, and beat the
complainant. The couple were brought to a camp where they were interrogated
separately for approximately three hours and then released after the
complainant signed a confession stating that he had adopted the Wahhabi
ideas and had forced his wife to wear a veil. On their release, the couple
was helped by a friend of the complainant's to leave the country and return
to Saudi Arabia.
2.4 On his return to Saudi Arabia in 1992, the complainant continued with
his activities in the Muslim community. In July of that year, he also
received a new passport at the Tunisian Embassy in Riyadh. In 1993 a "secret
decree" was issued in Tunisia, which forbade Tunisian embassies from issuing
or renewing passports without consulting the Tunisian Ministry of Internal
Affairs. For wanted persons, the embassies could only issue a laisser-passer
for a journey back to Tunisia.
2.5 In 1996, the complainant received information that he and other
Tunisians were being monitored by the Tunisian Embassy. He was also told
that another Tunisian who lived in Saudi Arabia and whom he used to meet for
religious discussions had been arrested and imprisoned when he was visiting
Tunisia on vacation.
2.6 In 1997, another Tunisian who worked on the same type of activities as
the complainant was refused an extension of his passport by the Tunisian
Embassy in Riyadh. He later left Saudi Arabia and went to Switzerland. On 1
August 1997, the complainant applied for asylum in Switzerland, but since he
had no proof of the risk he would be facing upon return to Tunisia, and
because he wished to live in Saudi Arabia, he withdrew his application and
returned to Saudi Arabia.
2.7 On 27 July 1997 the complainant's passport expired. He applied for an
extension at the Tunisian Embassy in Riyadh but was refused on 9
November1997 for "administrative reasons". The complainant believes that his
passport was not extended because he is wanted by the Tunisian authorities.
He then tried, with the help of friends, to obtain a Saudi Arabian passport
but failed. The complainant knew that if he stayed in Saudi Arabia without a
valid passport he would be forcibly returned to Tunisia where he would be
arrested, imprisoned, and most probably subjected to torture. He persuaded a
contact in Saudi Arabia to make false stamps to extend his passport. With
the help of friends he obtained a business visa with which he entered Sweden
on 26 March 1998.
2.8 Since his arrival in Sweden the complainant has been involved in
activities in the mosque and gives lectures on Islam. He is convinced that
the Tunisian authorities are aware of these activities. His wife returned to
Tunisia from Saudi Arabia. She was subjected to different kinds of
harassment and was finally "forced" to divorce the complainant. On 14 May
1999, the complainant married a Swedish citizen of Tunisian origin. The
couple have since divorced but have a daughter together.
2.9 On 1 March 1999, the complainant's application for asylum and a
residence permit was turned down by the Swedish Immigration Board. He
appealed the decision to the Aliens Appeals Board. On 28 September 2000, his
appeal was refused.
2.10 In February 2001, the complainant then made a second application for
asylum and a residence permit to the Aliens Appeals Board. His second
application was also refused although he submitted the false stamps he had
bought in Saudi Arabia to extend his passport, a second letter from the
Chairman of the Al-Nadha certifying his personal knowledge of the
complainant and referring to the likelihood of his being subjected to
torture if deported to Tunisia, and a letter from UNHCR stating the
following, "UNHCR has no reasons to doubt the genuineness of the above
attestation [certificate from the Chairman of Al-Nadha]. In light of this,
and considering that members of the Al-Nadha Party still risk persecution in
Tunisia, we would advise against the return of the applicant to Tunisia."
2.11 On 6 March, the complainant submitted a third application for
consideration by the Aliens Appeals Board. The complainant included a letter
from Amnesty International, Sweden and the United States Department of State
country report describing the general human rights situation in Tunisia. The
letter from Amnesty also states that in the opinion of the organization the
complainant would be at risk of torture if retuned to Tunisia because of his
involvement with Al-Nadha. On 19 March 2001, the Aliens Board rejected his
application, stating that the complainant had referred to the same
information as in his previous applications.
2.12 The complainant says that the general human rights situation in Tunisia
is very bad. Thousands of persons are imprisoned for their religious and/or
political beliefs. He refers to different reports by Amnesty International
according to which there is a high risk of persecution for members and
sympathizers of Al-Nadha.
The Complaint
3.1 The complainant claims that due to his involvement with Al-Nadha, the
fact that he was previously arrested and interrogated by the Tunisian
authorities, and the existence of a consistent pattern of gross violations
of human rights, there are substantial grounds for believing that he would
be in danger of being subjected to torture on return to Tunisia and,
therefore, Sweden would be violating article 3 of the Convention if he were
returned there.
3.2 The complainant states that the Immigration Board's decision not to
grant him asylum was based on an incorrect assessment of the evidence before
it and that very important information provided by the complainant,
including the letters from the Chairman of Al-Nadha, the letter from UNHCR
and information from Amnesty International, all of which specifically
referred to the risk that the complainant would be subjected to torture,
were not taken into account in forming its decision.
The State Party's Observations on Admissibility and Merits and the
Complainant's Comments Thereon
4.1 The State party raises no objection to the admissibility of the
petition. On 8 October 2001, the State party submitted its comments on the
merits of the petition. The State party explains that when the Immigration
Board rejected the complainant's application for asylum and a residence
permit, it also ordered his expulsion either to Tunisia or to Saudi Arabia.
4.2 The State party submits that it is primarily upon the complainant to
collect and present evidence in support of his claim. [FN1] Furthermore, it
is of the view that the competent national authority conducting the asylum
hearing is in the best position to judge the general veracity of the
complainant's case and consequently great importance must be attached to its
assessment. The State party submits that the complainant has not
substantiated his claim that he would run a personal, real and foreseeable
risk of being tortured if returned to Tunisia.
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[FN1] The State party refers to S.L. v. Sweden, complaint No. 150/1999,
Decision adopted on 11 May 2001.
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4.3 On the complainant's claim to have been intimated by the police on
account of his political and religious beliefs in 1989, 1990 and 1992, the
State party submits that neither of the incidents in 1989 or 1990 prevented
his from returning to the country. Yet the incident in 1989 appears to have
entailed the most serious violation of his rights. The State party
highlights that in this regard the complainant has provided no details of
the abuse, no information about the possible after-effects and no evidence
to support his claim, and refers in this connection to the Committee's
general comment on the implementation of article 3 of the Convention. [FN2]
The State party also adds that although the complainant was already at this
time accused, inter alia, of providing financial support to families of
persons imprisoned for activities against the regime, he was never convicted
as a result of the allegations made against him. On the contrary, and
according to the complainant himself, in 1989 the court issued a certificate
stating that he was not wanted by the authorities. The State party submits
that with regard to the two other occasions when the complainant claims to
have been interrogated, he makes no claim of being tortured, and in this
regard the State party notes that a risk of detention is not sufficient to
justify the protection of article 3 of the Convention, and refers to I.A.O.
v. Sweden. [FN3]
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[FN2] Official Records of the General Assembly, Fifty-third session,
Supplement No. 44 (A/53/44), annex IX, para. 8 (c).
[FN3] Case No. 65/1997.
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4.4 The State party submits that the claim of having been monitored by the
Tunisian authorities ever since his arrival in Saudi Arabia has not been
substantiated and that there is nothing to indicate that they knew of his
activities in Saudi Arabia or showed any particular interest in him at any
other time between 1992 and 1997. In this context, the complainant has not
claimed that other Tunisians who participated in the activities for which
the authorities allegedly wanted to arrest him were tortured. [FN4] In
addition, the State party notes that he was granted a new passport by the
Tunisian Embassy in July 1992 and appears to have had contact with the
Embassy without ever receiving any indications that he was wanted by the
Tunisian authorities or was requested to return to Tunisia.
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[FN4] The State party refers to J.U.A. v. Switzerland, case No. 100/1997,
Decision adopted on 10 November 1998.
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4.5 In the light of the above, the State party submits that the
complainant's claim that in 1997 he was denied an extension of his passport
on the grounds that he was wanted for arrest by Tunisian authorities appears
doubtful. As for the existence of a decree in 1993 prohibiting the issuance
of passports to wanted Tunisian citizens, the State party has received no
information to confirm this. The State party notes that the Embassy's
refusal to issue the complainant a new passport was "for administrative
reasons", and he has not demonstrated that there might have been any other
reasons.
4.6 The State party also refers to two claims made by the complainant during
the immigration proceedings: firstly, that he had received letters from his
wife in which she referred to intimidation by the police after her return to
Tunisia; secondly, that he had received information that his father had been
interrogated by the police about his whereabouts in 1994. On the first
issue, the State party notes that the complainant has not submitted any
details of the circumstances surrounding the alleged harassment, nor has he
submitted the letters or given any reason for not doing so. On the second
issue, the State party submits that the documents provided as evidence were
examined by the Aliens Appeals Board in its first decision and for several
reasons considered not to be genuine.
4.7 With respect to the second letter from the Chairman of Al-Nadha, the
State party submits that "given the assessment regarding the first
certificate, the reliability of the second can be put in question". The
Aliens Appeals Board had decided that the first letter had been issued
without the Chairman's personal knowledge of the complainant.
4.8 With respect to the letter from UNHCR, the State party submits that it
appears to have been based solely on the certificate by the Chairman of
Al-Nadha and, although the State party believes the certificate to be
genuine, its reliability does not appear to have been assessed by UNHCR in
terms of a "foreseeable, real and personal risk" test.
4.9 With respect to the letter from Amnesty International Sweden, the State
party submits, firstly, that it is not possible to tell from the letter what
facts the complainant submitted to that organization; thus, it cannot be
ruled out that there may be significant differences in content and detail
between the information available to the immigration authorities and the
information available to Amnesty International. Secondly, there is nothing
in the note to indicate that Amnesty International had made any assessment
of the credibility of the complainant's statement of facts. Neither is there
anything to suggest that the assessment was made against the criterion of
"foreseeable, real and personal risk". The State party is therefore of the
view that the conclusion proposed in the letter can only be of limited
significance in assessing the case at hand. In addition, the State party
submits that reports from, among others, Amnesty International in fact form
part of the material available to the Swedish immigration authorities in
their decision-making process.
4.10 On the complainant's suggestion that in addition to the Al-Nadha
association he risks arrest and torture for having entered Sweden with a
fraudulent Tunisian passport, the State party responds that, firstly, the
Board was of the opinion that the complainant had not falsified his
passport. Secondly, there is nothing to indicate that, even if the
complainant were charged in Tunisia with falsifying his passport, he would
necessarily be subjected to ill-treatment or torture. Thirdly, no
information has been provided to indicate that the Tunisian authorities
would know if the complainant were in possession of an illegal passport.
4.11 In light of all the above arguments, the State party doubts the general
veracity of the complainant's claims. In its view the complainant should not
be granted the benefit of the doubt, without providing additional details
and evidence. [FN5]
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[FN5] The State party refers to A.S. v. Sweden, case No. 149/1999, Decision
adopted on 24 November 2000.
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4.12 The State party does not deny that the human rights situation generally
in Tunisia is "far from ideal", and makes reference to the Amnesty
International report of 2001 and the United States Department of State
Country Report on Human Rights Practices for 2000. It leaves it up to the
Committee to decide whether this constitutes a consistent pattern of gross,
flagrant and mass violations of human rights.
4.13 With respect to a possible expulsion to Saudi Arabia, the State party
notes that the complainant has not claimed that he is wanted there or would
be subject to arrest and torture there. However, the State party submits
that the complainant must prove that there is also a foreseeable, real and
personal risk that he would be returned from Saudi Arabia to Tunisia, where
he claims he would be tortured. According to the State party, foreigners are
allowed to reside and work in Saudi Arabia provided that they are sponsored
by a citizen or a domestic business and have a valid residence permit. The
complainant lived in Saudi Arabia for 15 years and therefore must have had
some kind of sponsor. The State party submits that the complainant has
provided no information to indicate that his Saudi residence permit would
not be extended if he were returned to Saudi Arabia, nor that the Saudi
authorities would hand him over to the Tunisian authorities. In fact, he was
granted permission to return there within six months of his departure.
4.14 In response to the State party's submission, the complainant contests
the version of the facts submitted by the State party. With respect to the
State party's response to the letter from Amnesty International, the
complainant refers to a further letter provided by Amnesty International,
dated 23 November 2001, in which it confirms that the information it relied
on in the assessment of the complainant's case was that "provided in the
inquiry made by and the decisions taken by the Swedish immigration
authorities". Amnesty also stated that it "has indeed made its
risk-assessment against the criterion of 'foreseeable, real and personal',
as the organization on numerous occasions has reported abuses against
members and sympathizers of Al-Nadha, as well as against other people
accused of supporting the group". Amnesty International emphasizes, with
reference to the Swedish authorities' decisions, that even individuals with
a weak link to Al-Nadha have been subjected to persecution in Tunisia.
4.15 With respect to the information provided by UNHCR, the complainant
states that the office had provided two letters in which it states its clear
position that all Al-Nadha members risk persecution. This statement goes
even further than evaluating individual risk.
4.16 As to the letters from the Chairman of Al-Nadha, the complainant notes
that the second letter makes it clear that he has personal knowledge of the
complainant. Indeed, the State party itself states that it has no reason to
doubt that the certificate is genuine.
Issues and Proceedings Before the Committee
5.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not it is admissible under
article 22 of the Convention. In this respect 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 no further obstacles to the admissibility of the communication. Thus,
the Committee proceeds to a consideration of the merits.
5.2 The Committee must decide whether the forced return of the complainant
to Tunisia would violate the State party's obligation, 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 would be in danger of being subjected to torture. In order
to reach its conclusion, 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 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.
5.3 The Committee notes the complainant's argument that there is a
foreseeable risk that he will be tortured if deported to Tunisia because of
his involvement with Al-Nadha and the fact that he was previously
interrogated and tortured by the Tunisian authorities. The Committee takes
note of the information provided by Amnesty International but observes that
the complainant does not contest that he was not a member of Al-Nadha nor
involved in any political activity, but merely involved in work of a
humanitarian nature. In addition, the Committee notes that the complainant
has not provided any evidence of having been tortured by the Tunisian
authorities and has not alleged any other circumstances which would appear
to make him particularly vulnerable to the risk of being torture. This
consideration is further supported by the fact that the author, although
allegedly tortured in Tunisia in 1989, returned to Tunisia in 1990 without
being subjected to torture. For the above-mentioned reasons, the Committee
finds that the complainant has not provided substantial grounds for
believing that he would be in danger of being tortured were he to be
returned to Tunisia and that such danger is personal and present.
6. 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 Tunisia
would not constitute a breach by the State party of article 3 of the
Convention.
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