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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 2003,
Having concluded its consideration of complaint No. 198/2002, submitted to
the Committee against Torture by Mr. A A 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 complaint, his counsel and the State party,
Adopts the following:
Views Under Article 22, Paragraph 7, of the Convention
1.1 The petitioner is, a Sudanese citizen, born on 11 November 1968,
currently residing in the Netherlands, where he has requested asylum. He
claims that his removal to Sudan would constitute a violation of article 3
of the Convention by the Netherlands. He is represented by counsel.
1.2 On 10 January 2002, the Committee, in accordance with rule 108 of its
rules of procedures, requested the State party not to expel the petitioner,
pending the consideration of his case by the Committee. On 11 March 2002,
the State party informed the Committee that this request would be complied
with.
The Facts as Submitted by the Petitioner:
2.1 The petitioner was a practicing lawyer in Sudan. He alleges that his
sister, Zakia, is the widow of Bashir Mustafa Bashir, who was one of the 28
persons involved in the coup in Sudan in 1989, for which Mr. Bashir was
executed. The petitioner's sister later became active in an opposition
organization for the relatives of martyrs. Since 1993, the petitioner had
been active in the banned Democratic Unionist Party (DUP) belonging to al-Tajammu'
al-Watani li'adat al-Dimuqratiya (the National Democratic Alliance, a
coalition of opposition parties). He is a member of the Sudanese Bar
Association since 1992.
2.2 In the summer 1997, a pro-government party competed with DUP in
elections for the Sudanese Bar Association. During preparations for the
elections, DUP organized a meeting for its supporters. The petitioner
participated as one of the organizers and speakers. He claims that the
meeting was attended by so many people, that Sudanese authorities intervened
and arrested several persons, among them the petitioner. He alleges that he
was subsequently kept in a detention center of the state security service in
Al Khartoum-Bahri for 10 days, during which he was questioned, mistreated
and tortured. He was then conditionally released (travel ban).
2.3 While traveling to Port Sudan to participate in activities for the
opposition party in September 1997, the petitioner was arrested for the
second time. He was kept in detention in Sawakin, where he was questioned
and allegedly threatened with death. After 3 days in detention, he claims
that he was thrown into the sea and was picked up after about 15 minutes. He
was then brought to a prison where he was detained for a week. Upon release,
he was told to stop his political activities.
2.4 On the day of the elections, a conflict erupted between the government
party and the supporters of the opposition over allegations of election
fraud. The petitioner was once again arrested and kept in detention for 3
days, during which he claims to have been tortured. On 30 January 1998, he
again was arrested while attending a mass demonstration that he had helped
to organize. He was brought to a secret underground prison, a so-called "ghosthouse",
where he was kept in detention for about 2 months. He managed to escape from
the prison and fled to the Netherlands, where he arrived on 13 April 1998.
2.5 The petitioner requested asylum in the Netherlands on 15 April 1998. On
12 May 1998, the migration authorities interviewed with him, and the
Secretary of Justice rejected his request as manifestly ill founded on 23
May 1999. The petitioner's request for residence on humanitarian grounds was
also rejected.
2.6 On 14 April 2000, the Secretary of Justice rejected his request for a
review of the decision. Furthermore, the petitioner's appeal to the Hague
District Court was rejected on 29 March 2001.
The Complaint:
3. The petitioner claims that if returned to Sudan, he would be subjected to
torture. In substantiation of this fear, he provides his history of previous
detention, with allegations that he was tortured on account of his political
activity in Sudan. He further indicates that there is a consistent pattern
of human rights violations committed by Sudanese authorities, and refers to
reports by human rights non-governmental organizations, and documents of the
United Nations Commission on Human Rights.
The State Party's Observations on the Admissibility and Merits.
4.1 By note verbale dated 11 March 2002, the State party informed the
Committee that it does not object to the admissibility of the petition. The
State party presented its observations on the merits of the petition on 9
July 2002.
4.2 The State party contends that petitioner's return would not violate its
obligations under article 3 of the Convention. It gives a detailed
description of the national proceedings in the case. Admission and expulsion
of aliens are regulated by the 1965 Aliens Act, the Aliens Decree, the
Regulation of Aliens and the 1994 Aliens Act Implementation Guidelines.
[FN1]
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[FN1] Preliminary, the State party informs the Committee that although on 1
April 2001, a new Aliens Act entered into force that has no consequences of
substance for the petitioner's situation.
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4.3 The first interview of an asylum seeker takes place as soon as possible.
It is conducted on the basis of a form on which the asylum seeker fills in
relevant data. At this stage he is not asked about the reasons for leaving
his country of origin. This interview is followed by a second one which
focuses on the reasons for leaving the country of origin. The asylum seeker
or his representative receive a copy of the report made by the interviewing
officer, and have at least two days to submit corrections or additions. A
decision is then made by an Immigration and Naturalisation Service (INS)
official on behalf of the State Secretary for Justice.
4.4 If an application for admission as refugee or for a residence permit is
denied, the asylum seeker may lodge an objection. The decision is reviewed
by a committee, which interviews the asylum seeker. If the objection is
declared unfounded, an appeal can be lodged with the Hague District Court,
with no possible further appeal, as provided under the 1965 Aliens Act.
[FN2]
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[FN2] The State party declares, however, that a Legal Uniformity Division
exists within the Hague District Court, in order to promote consistency in
the application of the law in asylum cases and other proceedings involving
aliens.
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4.5 The State party affirms that the Dutch Minister of Foreign Affairs
issues periodically country reports [FN3] on the human rights situation in
Sudan. According to the Sudan report of September 1998, after the coup led
by General Omar Hassan al-Bashir on 30 June 1989, all political parties were
banned, the leaders left the country or continued their political activities
in hiding. The National Islamic Front (NIF) remained the only influential
political force. Since 1993, Omar Hassan al � Bashir has been the President
of Sudan. The NIF has a large majority in parliament. The report noted that
arbitrary arrests and detention without charge were current. Supporters of
banned political parties, trade union officials, lawyers and human rights
activists were among the potential victims. Members of these groups had been
known to � disappear �, ending up on the security services' � ghost houses
�, or being harassed in other ways by the security services.
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[FN3] The reports on the situation in countries of origin are issued, using
information of non governmental organisations and reports received by the
Dutch diplomatic missions.
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4.6 The State party argues that according to the above report, political
prisoners were mainly detained in the Khartoum North Central Prison (Kober
prison). By European standards, the living conditions in that prison were
poor, but the prohibition of torture was respected. The military and
security services had their own detention centres, where torture and
detention without charge were frequent. "Ghost houses" were unofficial
detention centres, not subjected to any form of oversight. Detention
generally lasted from few a days to three weeks. The purpose was to
intimidate suspected political adversaries; detainees were subjected to
mental and physical abuse and torture. The armed attacks in eastern Sudan
led to increased use of these centres in the first half of 1997, but once
the government established greater control over the situation later in 1997,
their use declined. The Minister concluded that since 1997, some positive
changes in Sudan were discernible. The situation was not such as to imply
that it would be irresponsible to return a Sudanese national whose
application for admission as a refugee or for a residence permit on
humanitarian grounds had been refused after careful consideration.
4.7 By letter of 20 November 1998, the State Secretary for justice notified
the House of Representatives of his decision that Northern Sudanese asylum
seekers would no longer be eligible for provisional residence permits [FN4].
On 2 June 1999, the Legal Uniformity (Alien affairs) Division concluded
that, on the basis of the information available, the State Secretary for
Justice's decision was justified.
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[FN4] The State party explains that this type of policy is known in the
Netherlands as categorial protection (categoriale bescherming).
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4.8 The country report of 1999 stated that the human rights situation in
Sudan had improved slightly but remained a cause of concern. Especially, the
situation in the conflict areas was troubling. Arbitrary arrest and
detention had become less common, but were still possible under the National
Security Act and the Criminal Code (no date specified).
4.9 On 21 July 2000, the Minister of Foreign Affairs released a
supplementary report on the policy of a number of Western countries on the
return of Sudanese whose applications for asylum were unsuccessful. The
country reports of 1999 and 2000 led the State Secretary for Justice to
alter his policy on categorial protection. In particular, members of the
non-Arabic South Sudanese groups or Nuba groups who, before leaving the
country, had resided undisturbed in Northern Sudan were, no more eligible
for provisional residence permits.
4.10 The State party's latest country report of March 2001 notes that the
human rights situation had improved slightly but remained a cause of
concern, especially in conflict areas. President al-Bashir replaced the
Tawali Act of January 1999 by new Act on Political Parties, permitting
political parties of 100 members or more to conduct political activities.
The report states that political parties can carry out political activities
without adverse consequences to a reasonable extent. There is no complete
freedom, however. Political leaders, for instance, have on several occasions
been summoned for questioning by security services and one arrest has been
reported. There were, however, no cases of detention lasting longer than a
day or of a serious abuse, as there were before. Parties, such as the UP and
DUP, enjoyed more freedom than before. Members of the northern opposition
returned to Sudan in response to the "Motherland Call" and an amnesty for
political refugees living in exile announced by President al-Bashir on
several occasions and put in writing on 3 June 2000. Accordingly, the State
party's policy in relation to residence requests from Sudanese asylum
seekers remained intact.
4.11 In relation to the petitioner's personal situation, the State party
recalls that he claims to have begun work as a lawyer in Khartoum in March
1992, and he was member of the trade union for Sudanese lawyers (� the
lawyers' union �). In 1993, he became a member of the Democratic Unionist
Party (DUP), belonging to the National Democratic Alliance. The lawyers
union had two fractions: one supporting the regime in power, and one
supporting the DUP. The petitioner carried out activities for the DUP within
the lawyers union, mainly by coordinating and organizing meetings with the
aim of overthrowing the regime. According to the petitioner, his troubles
started in July 1997, during the preparation for elections for the members
of the board of the lawyers union, to be held in November 1997. He states
that the authorities had harboured ill-will towards him and his family even
before then, because his brother in law, Bashir Mustafa Bashir, had been one
of the 29 officers executed for their involvement in an attempt coup on 28
June 1989.
4.12 The State party notes that the petitioner was arrested four times: in
July 1997, during a meeting in the offices of the lawyers union in relation
to the coming elections; in September 1997, when he wanted to attend a party
meeting in Port Sudan and went to obtain a travel permit from the security
services; he was informed that after his arrest in 1997, he was no longer
allowed to travel. He departed nevertheless, but was arrested in Sawakin and
placed in custody. After 3 days, he was thrown into the ocean by the
security services. He claims that this was done to scare him; he was picked
up by a trawler, accused of arms trafficking and of leaving Sudan illegally
and turned over to the security services again. He was detained during seven
days, after which he was released. The third arrest was in November 1997,
when he was monitoring the elections within the lawyers union. The final
arrest took place on 30 January 1998, during a demonstration. The petitioner
alleged that he was transported to a ghost house, where major opponents of
the regime were detained. He was kept in a solitary cell, measuring 0.5 by 3
meters and was interrogated twice, and subjected to psychological torture.
On 20 March 1998, he was interrogated by a former classmate from secondary
school. The former classmate decided to help the petitioner, and told him
how to escape from the cell. On 25 March 1998, he left Sudan by ship from
Port Sudan.
4.13 The State party recalls that the petitioner applied for asylum and for
a residence permit on 15 April 1998. On 12 May 1998, he was interviewed by
an IND official, with the help of an Arabic interpreter, regarding the
reasons for seeking asylum. By a decision of 23 May 1999, his application
was rejected as manifestly ill-founded; his application for resident permit
was also rejected. On 17 June he lodged an objection against the decision of
23 May 1998; on 10 February 2000 he was interviewed by a committee regarding
his objection. The objection was declared unfounded on 14 April 2000. The
petitioner lodged an appeal against that decision on 9 May 2000. By judgment
of 29 March 2001, the Hague District Court declared the appeal unfounded.
4.14. The State party considers that the existence of a consistent pattern
of gross violations of human rights in a country does not as such constitute
sufficient ground for determining that a particular person would be in
danger of being subjected to torture upon his return to that country;
specific grounds must exist to the effect that the individual concerned
would be personally at risk. [FN5] The State party recalls that "substantial
grounds" require more than a mere possibility of torture but need not be
highly likely in order to satisfy that provision's conditions. The State
party refers to the Committee's Views in communication no. 28/1995, E.A. v.
Switzerland.
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[FN5] The State party recalls the Committees' Views in communications no.
91/1997, A. v. Netherlands, and no. 94/1997, K.N. v. Switzerland.
FN6 The State party refers to the Committee's Views in communication no.
28/1995, E.A. v. Switzerland.
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4.15 The State party invokes the Committee's general comment on article 3,
in particular paragraphs 6 and 7 [FN7], and the Committee's Views in
communication no. 142/1999, S.S. and S.A. v Netherlands.
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[FN7] � �6. Bearing in mind that the State party and the Committee are
obliged to assess whether there are substantial grounds for believing that
the petitioner would be in danger of being subjected to torture were he/she
to be expelled, returned or extradited, the risk of torture must be assessed
on grounds that go beyond mere theory or suspicion. However, the risk does
not have to meet the test of being highly probable.
7. The petitioner must establish that he/she would be in danger of being
tortured and that the grounds for so believing are substantial in the way
described, and that such danger is personal and present. All pertinent
information may be introduced by either party to bear on this matter �.
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4.16 The State party, in relation to the petitioner's personal risk in the
event if his return to Sudan, notes that the current human rights situation
in Sudan, though a cause of concern, does not provide substantial grounds
for believing that all Sudanese are in general in danger of being subjected
to torture. The State party refers to the Minister of Foreign Affair's
country reports and to the Committee's jurisprudence.
4.17 For the State party, the fact the petitioner was a lawyer and a member
of the DUP, does not in itself constitute sufficient grounds for assuming
that if he were returned to Sudan, he would be in danger of being subjected
to treatment contrary to article 3 of the Convention. The State party
invokes the country reports of the Minister of Foreign Affairs referred to
above. Though complete freedom for activists of political parties has yet to
arrive, there are no longer any cases of detention lasting longer than a
day, or other serious abuse. Furthermore, in response to the "Motherland
Call" and the proclamation of an amnesty, important members of the northern
opposition have returned to Sudan.
4.18 In the State party's opinion, it cannot be concluded that the
petitioner would run a foreseeable, real and personal risk of being tortured
if returned to his country of origin. There remained some doubt as to the
credibility of the petitioner's allegations that the authorities harbour
ill-will towards him and his family, because his brother in law participated
in a coup attempt on 23 September 1989. The State party argues that it is
not aware of a coup attempt on that date; all its reports stated that a coup
took place on 30 June 1989, under the leadership of Lieutenant-General
al-Bashir, since then the President of Sudan. The State party argues that
the petitioner has failed to substantiate his claim that his problems with
the authorities in 1989 arose as a result of the activities of his brother
in law, and were such that he must fear treatment in violation of the
Convention.
4.19 The State party dismisses as implausible the petitioner's allegation
that he was detained form 30 January 1998 to 23 March 1998. His statements
allegedly were contradictory, vague and imprecise. In particular, he gave
contradictory accounts of the number of people present at his
interrogations.
4.20 The petitioner was unable, according to the State party, to provide
details about the prison in which he was held and, despite having been
detained for over two months, could not describe his cell in any detail. The
State party dismiss as implausible his statement that obstacles in the cell
made it impossible for him to walk. It is unimaginable, in the State party's
opinion, that during a detention of almost two months, he would not
investigated his surroundings. He should have been able to describe his cell
in more detail, at least because he alleges that food was thrown into his
cell daily.
4.21 The State party voices doubts about the ease with which the petitioner
claims to have been able to leave his prison. It contends that it stretches
imagination that major Sudanese opponents of the regime would be detained in
a prison with unlocked doors. The State party also considers it curious that
the petitioner was able to leave undetected in a car that was waiting for
him only 100 meters from the prison. As final conclusion, the State party
considers implausible the petitioner's account of his detention.
4.22 The State party concludes that, in its opinion, the inconsistencies in
the petitioner's presentation of the facts are material and raise doubts
about the veracity of his claims; these inconsistencies are related to
essential aspects of the reasons given by him for leaving Sudan. The State
party believes that there were sufficient grounds for regarding it as
implausible that the Sudanese authorities harbour ill-will towards him and
that, as a result, he would, on returning to Sudan, be in danger of torture,
or that the grounds for this belief are substantial in a way that such
danger would be personal and present.
4.23 The State party contends that even if credence was given to the
petitioner's statements regarding his problems in connection with his
activities for the DUP within the lawyers' union, this does not justify the
conclusion that he would undergo treatment contrary to article 3 of the
Convention if he were now to return to Sudan. The State party notes that it
does not find it plausible that the Sudanese authorities were fully aware of
the petitioner's individual political activities given that they were
carried out under cover of the lawyers' union. The State party notes also
that according to the petitioner's own statements, he was never personally
arrested or ill-treated (in its own home town, for instance) by the
authorities. His arrests took place once in the context of intervention by
the police during a large-scale disruption of public order and once because
he had violated a travel ban.
4.24 The State party further concludes that given the general situation in
Sudan and the personal circumstances of the petitioner, there is no reason
to conclude that substantial grounds exist for believing that the petitioner
would run a foreseeable, real and personal risk of being subjected to
torture upon his return in Sudan.
The Petitioner's Comments
5.1 In his comments on the State party's observations of 22 December 2002,
the petitioner notes the State party's expression of some doubts about the
credibility of his statements, and argues that "some" doubts is insufficient
to contest the credibility of his statements. He challenges the State
party's doubts about the credibility of his statements related to his
detention from 30 January 1998 to 23 March 1998. He notes that the State
party does not contest his involvement in the demonstration on 30 January
1998, and declares that the contradictions pointed by the State party are
minor ones. He dismisses the State party's observations as speculative
because it did not take into consideration that he was detained in a
"ghosthouse" which is not a normal detention facility, and information on
such "ghosthouses" is not readily available. He objects that the State party
did not take into consideration the circumstances under which he was
detained and the fact that he was at that time already a victim of previous
acts of torture.
5.2 According to the petitioner, the State party has not expressed, before,
explicitly doubts about the credibility of his statements concerning his
first, second and third detentions. The petitioner views his statements as
detailed, consistent and without contradictions.
5.3 The petitioner contests the State party's conclusion in paragraph 4.24
above. He recalls that, first, since the lawyers union elections were highly
political, it is not implausible that the authorities were aware of his
political involvement. He reiterates that he was questioned about his
activities and he was asked to stop them.
5.4 The petitioner further argues that the facts do not support the State
party's observation that he was not "singled out". The first time he was
arrested, questioned and tortured, he was one of the organizers and speakers
of the meeting in the lawyers' union offices. The second time he was
arrested, detained and tortured, and told to stop his political activities,
after he violated a travel ban. The third time, he was among those who had
detected an electoral fraud scheme.
5.5 The petitioner considers also that the State party should, but did not,
take into consideration that every time he was detained, he was tortured.
5.6 Finally, the petitioner states that the State party should, but did not,
take into account that lawyers in his position remain a group at risk in
Sudan. [FN8]
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[FN8] The petitioner gives as example an NGO appeal and a Report of the
Special Representative of the United Nations Secretary General on Human
Rights Defenders of 27 February 2002.
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Issues Before the Committee
6. Before considering any claim contained in a complaint, the Committee 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 or is
not being examined under another procedure of international investigation or
settlement. The Committee notes that the State party has not raised any
objections to the admissibility of the communication, and that it has
requested the Committee to proceed to an examination of the merits. The
Committee concludes that no obstacles to the admissibility of the complaint
exist and proceeds with the consideration of its the merits.
7.1 The Committee has considered the complaint in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
7.2 The issue before the Committee is whether or not the forced return of
the petitioner to Sudan would violate the State party's obligation, under
article 3 of the Convention, not to expel or to return a person to another
State where there are substantial grounds for believing that he would be in
danger of being subjected to torture.
7.3 The Committee recalls that in reaching its decision, it must take into
account all relevant considerations, pursuant to article 3, paragraph 2,
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 be
returned. 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.
7.4 In the instant case, the Committee notes the inconsistencies in the
petitioner's account, as pointed out by the State party, as well as the
general failure by the petitioner, to substantiate his allegations that he
was subjected to torture.
7.5 The Committee further notes the State party's remarks that the
petitioner failed to give any information on the conditions of detention in
a so-called "ghosthouse", that he failed to describe the cell in which he
alleges to have been detained for several weeks. The petitioner has not
responded to these arguments other than by noting that it is insufficient
for the State party to manifest "some doubts" about the credibility of his
statements. The Committee also notes that the petitioner failed to respond
to the doubts voiced by the State party concerning the ease with which he
claims to have been able to leave the prison.
7.6 The Committee finally notes the State party's observations on the
evolution of the political system in Sudan over the last few years, in
particular the legalisation of the political parties, the presidential
amnesty of political refugees of 3 June 2000, and the "Motherland call"
under which important members of the opposition have returned to Sudan. The
Committee notes that the petitioner has not challenged any of these
arguments in his comments.
7.7 On the basis of the above, the Committee considers that the information
made available by the petitioner does not show that substantial grounds
exist for believing that he would be personally in danger of being subjected
to torture in the event of his return to Sudan.
8. The Committee against Torture, acting under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, is of the view that the return of the petitioner to Sudan by the
State party would not constitute a violation to article 3 of the Convention
by the Netherlands.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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