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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 15 May 2002,
Having concluded its consideration of complaint No. 164/2000, 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
complainant and the State party,
Adopts the following decision under article 22, paragraph 7, of the
Convention.
1.1 The complainant is L.M.T.D., a Venezuelan citizen currently residing in
Sweden. She claims that her return to Venezuela following Sweden's refusal
to grant her political asylum would constitute a violation of article 3 of
the Convention. She is represented by counsel.
The Facts as Submitted by the Complainant:
2.1 The complainant worked as a procurator for juveniles in the office of
the Attorney-General of the Republic of Venezuela from 1988 to 1997. One of
her functions was to regularize the registration of children in the civil
registers so that they might later obtain an identity card. This procedure
took place on the basis of an authorization by a civil court.
2.2 In 1995, the complainant discovered that some Chinese nationals had
obtained Venezuelan identity cards and passports by using forged documents,
such as copies of registration decisions bearing her signature and stamp and
the stamp of the Civil Court. The complainant reported this fact to the
Attorney-General of the Republic for the latter to institute an
investigation to determine who was responsible for the forgery. On 22
February 1995, the complainant filed a complaint with Caracas Criminal Court
of First Instance No. 15. In 1996, she requested a judicial or eyewitness
inspection of the National Identification Office (ONI) and of the files of
the Aliens' Department (DEX), where the forged documents were found. The
inspection was never carried out because, according to the complainant, the
heads of the two bodies in question were linked to the Convergencia
political party, which received large amounts of money for granting
Venezuelan nationality to Chinese nationals.
2.3 In March 1997, the complainant was dismissed from the Office of the
Attorney-General of the Republic with no explanation, but still continued
with the investigation. From then on, she started receiving threats by
telephone and anonymous threats pushed under her door. Her daughter was the
victim of a kidnapping attempt and her husband was brutally pistol whipped
on the head and back. She was also warned that she had to stop investigating
and filing complaints.
2.4 In August 1997 and as a result of what had happened, the complainant and
her family moved from Caracas to Maracaibo. In December 1997, the
complainant's car was stolen and later burned. She was also harassed by
telephone and told that, if she filed any more complaints, she was the one
who would be accused of being responsible for the forgeries. As a result,
she and her family fled to the city of Maracay in January 1998. That was
when they decided to sell everything they owned and leave the country for
Sweden.
2.5 The complainant and her family applied for political asylum in Sweden on
19 March 1998. The Swedish National Migration Board rejected the application
on 24 August 1998, claiming that the facts did not in any way constitute
grounds for asylum in Sweden and that, in addition, the complainant could
prove her innocence through legal channels. An appeal against that decision
was submitted to the Aliens' Commission, which upheld the initial decision
on 3 March 2000. An application for inhibition was later filed with the
Aliens' Commission, but it was denied on 14 March 2000.
The Complaint:
3. The complainant claims that there are substantial grounds for believing
that, if she is returned to Venezuela, the persecution against her will
continue and she will be prosecuted for denouncing corrupt politicians in a
legal system where there is no guarantee of being able to prove that she is
innocent of the forgeries. She also claims that the security forces continue
to torture and ill-treat detainees both mentally and psychologically and
that she is in danger of being arrested, all in violation of article 3 of
the Convention.
The State Party's Observations:
4.1 In its observations of 28 August 2000, the State party replies to the
complainant's claims in respect of admissibility and the merits. After
giving a brief description of Swedish legislation relating to aliens, the
State party describes how the complainant, who was born in 1958, and her
husband and children entered Sweden with valid passports on 26 February
1998. They applied for asylum on 19 March 1998, claiming that they had been
subjected to harassment as a result of a bribery scandal and that they were
afraid to return to Venezuela. The application was turned down on 24 August
1998. The Aliens' Commission rejected the appeal on 3 March 2000.
4.2 With regard to admissibility, the State party maintains that the
application should be declared inadmissible ratione materiae, for lack of
proof that the complaint is compatible with the Convention, in accordance
with article 22, paragraph 2, of the Convention. In this connection, the
State party argues that the complainant claims that, if she is returned to
Venezuela, she will be arrested, tried and sentenced to prison, without
proper guarantees of a fair trial. However, according to the State party,
although the complainant has referred to article 3 of the Convention, she
has not specifically stated that she will be subjected to torture if she
returns to Venezuela. Rather, when the complainant was asked about prison
conditions in Venezuela during her interview with the National Immigration
Department official, she said that the police did not use torture. The State
party maintains that the facts which may cause the complainant to be afraid
of being returned to Venezuela do not come within the definition of torture
contained in the Convention.
4.3 With regard to the merits of the complaint, the State party draws a
distinction between the general human rights situation in Venezuela and the
personal situation of the complainant if she were returned to Venezuela.
(a) The State party affirms that, with regard to the general human rights
situation in Venezuela, although the human rights situation continues to be
poor in some respects, there are no grounds for stating that there is a
consistent pattern of gross, flagrant or mass violations of human rights.
The State party recalls that, although some reports of human rights
violations in Venezuela, such as the 1999 United States State Department
report on human rights in Venezuela, the 1999 Human Rights Watch report on
Venezuela and the 2000 Amnesty International report, refer to extrajudicial
executions by the army and the police, as well as to an increase in cases of
torture and ill-treatment of detainees, women detainees are held in separate
prisons, where conditions are better than in prisons for men. The State
party also reports that, in February 1999, the administration of President
Ch�vez re-established the articles of the Constitution relating to the
prohibition of arrests without a warrant and to freedom of movement. The
State party lastly recalls that such reports refer to torture, indicating
that the security forces continue to torture and ill-treat detainees both
physically and mentally. However, although the general human rights
situation in Venezuela leaves much to be desired, particularly with regard
to conditions of detention, that does not constitute sufficient grounds for
concluding that a person will be tortured if he or she is returned to
Venezuela.
(b) With regard to the complainant's personal situation, the State party
recalls that, unlike many other authors of complaints submitted to the
Committee, the complainant has not belonged to any party or political
organization. Her complaint is based on the fact that she was wrongfully
suspected of being involved in a bribery scandal, for which she could be
sentenced to imprisonment if she returned to Venezuela, in poor conditions
of detention. Moreover, she does not claim that she was ever subjected to
torture in the past and, more importantly, has not explicitly demonstrated
how she would be subjected to torture if she returned to Venezuela. The
State party also points out that Venezuela has not requested the
complainant's extradition and that there are no grounds for believing that
the Venezuelan authorities intend to imprison her. On the contrary, the
State party was able to ascertain that the head of the ONI, the primary
suspect in the bribery scandal, has not been arrested.
4.4 The State party reports that, in their decisions of 24 August 1998 and
14 March 2000, respectively, the National Migration Board and the Aliens'
Commission argued that the fact of being in danger of being tried for a
crime or of being subjected to harassment in Venezuela is not a reason for
granting asylum in Sweden. Both bodies also ascertain that, if she was
tried, the complainant would have a fair trial and would have a good chance
of winning her case. The State party adds that it does not question the
complainant's testimony about the bribery scandal and the subsequent
harassment. However, it does trust the arguments put forward by the two
bodies.
Comments by the Complainant:
5.1 In her comments of 27 March 2002, the complainant recognizes that the
State party does not contest her statements on factual grounds, but rather
in respect of the fact that she would run the risk of being subjected to
torture if she returned to Venezuela. The complainant nevertheless maintains
that there is a clear danger that she would be put on trial and given a long
prison sentence and that there is therefore also a danger that she would be
subjected to torture in a Venezuelan prison, in violation of article 3 of
the Convention.
5.2 With regard to the arguments of the State party that the complaint
should be declared inadmissible ratione materiae, the complainant says that,
when she left her post, she lost the protection of her status as a civil
servant and became exposed to harassment and threats by the ONI and the DEX,
where she was told she would be accused of having forged the documents
herself. The complainant argues that, since the threats come from persons
who are still in high political office, it is very doubtful whether she
would receive a fair trial. She adds that the decisions taken by the State
party in this case are based on erroneous information, so that they fail to
distinguish between the Attorney-General on the one hand and the ONI and the
DEX on the other or to take account of the fact that the head of the ONI was
at no time her supervisor. In addition, while the complainant acknowledges
that she had stated during questioning by the officials of the National
Migration Board that torture was not permitted in Venezuela, she had also
stated that she feared torture and the conditions in Venezuelan prisons.
5.3 With regard to the State party's arguments regarding the merits of the
case, the complainant says that she has substantial grounds for fearing for
her safety and that the State party's argument that the general conditions
in a country do not constitute sufficient grounds for determining whether a
person returning to the country would be in danger of being subjected to
torture is unconvincing. Moreover, despite the so-called improvements
introduced by President Ch�vez, the degree of corruption within the
Venezuelan administration is common knowledge. What is more, the complainant
continues, the State of Venezuela itself has established that more than one
person a day is tortured.
5.4 The complainant rejects the State party's arguments that she was never a
member of any political party or politically active: while she may have been
only a civil servant, the fact that those responsible for the forgeries were
political officials entailed political implications which give her
substantial grounds for fearing for her safety on returning to the country.
With regard to the State party's argument that the head of ONI has not been
arrested, the complainant says that is not a point that can be used as
evidence that she will be safe, since the powerful always protect the
powerful.
5.5 Lastly, the complainant reiterates that the current situation in
Venezuela following the coup d'�tat against President Ch�vez makes her more
fearful than ever for her safety if she returns to the country.
Issues and Proceedings Before the Committee:
6. Before considering any claims contained in a complaint, 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 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
the exhaustion of domestic remedies is not contested by the State party. It
further notes the State party's view that the complaint should be declared
inadmissible ratione materiae on the basis that the Convention is not
applicable to the facts alleged, since the acts the complainant will
allegedly face if she is returned to Venezuela do not fall within the
definition of "torture" set out in article 1 of the Convention. The
Committee is, however, of the opinion that the State party's argument raises
a substantive issue which should be dealt with at the merits and not the
admissibility stage. Since the Committee sees no further obstacles to
admissibility, it declares the communication admissible and, since both the
complainant and the State party have provided observations on the merits of
the communication, the Committee will proceed to examine those merits.
7. In accordance with article 3, paragraph 1, of the Convention, the
Committee must decide whether there are substantial grounds for believing
that the complainant would be in danger of being subjected to torture if she
returned to Venezuela. In order to reach its conclusion, the Committee must
take account of all relevant considerations, in accordance with article 3,
paragraph 2, of the Convention, including the existence of a consistent
pattern of gross, flagrant or mass violations of human rights. The aim is,
however, to determine whether the individual concerned would personally be
in danger of torture in the country to which he or she would return. 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 a 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 in danger. In the
present case, the Committee must determine whether the expulsion of the
complainant to Venezuela would entail a foreseeable, real and personal risk
of being arrested and tortured.
8. The Committee notes the State party's arguments that, although the human
rights situation in Venezuela remains poor, particularly with regard to
prison conditions, there are no grounds for stating that a consistent
pattern of gross, flagrant or mass violations of human rights exists in
Venezuela. The Committee also notes the exchange of arguments between the
complainant and the State party concerning the alleged risk to the
complainant of being subjected to torture and considers that the complainant
has not provided sufficient evidence to show that she runs a foreseeable,
real and personal risk of being tortured in Venezuela.
9. The Committee agrees with arguments put forward by the State party and
takes the view that the information submitted does not show substantial
grounds for believing that the complainant would personally be in danger of
being subjected to torture if she was returned to Venezuela.
10. 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 decision of the State party to
return the complainant to Venezuela does not constitute a violation of
article 3 of the Convention.
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