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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 17 November 2003,
Having concluded its consideration of complaint No. 210/2002, submitted to
the Committee against Torture by Mr. V. R. 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:
Decision Under Article 22, Paragraph 7, of the Convention
1. The complainant is Mr. V. R., a citizen of the Russian Federation
residing in Denmark at the time of the submission of the complaint. He
claims that his forcible return to the Russian Federation would constitute a
violation of article 3 of the Convention against Torture by Denmark. He is
not represented by counsel.
The Facts as Submitted:
2.1 On 6 November 1992, the complainant and his wife entered Denmark and
immediately applied for asylum. On 5 November 1993, the Danish Refugee Board
upheld a previous decision of the Directorate of Immigration according to
which the complainant and his family had to leave Denmark by 20 November
1993. The complainant and his family left Denmark and returned to Russia.
[FN1]
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[FN1] The exact date of their return is not provided.
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2.2 On 26 July 1994, and upon returning to the Russian Federation from
Denmark, the complainant alleges that he was arrested and charged with
unlawfully crossing the border, participating in subversive offences and
defaming persons representing authority. He alleges that he was detained by
the authorities from 26 July 1994 to 20 January 1998 and was subjected to
various forms of torture, including having gas passed up through his
windpipe until he vomited and forcing him to swallow soup straight from a
bowl with his hands tied behind his back. In January 1996, he alleges to
have been sentenced to three and a half years imprisonment for having
unlawfully crossed the border, and having participated in subversive
offences. Upon release, he became a member of the Citizens' Union where he
carried out activities on civil rights issues. As a result of these
activities, he alleges to have come into conflict with the authorities,
which again deprived him of his liberty and subjected him to torture.
2.3 On 15 July 1999, the complainant and his wife and child entered Denmark
for the second time; the next day, they applied for asylum. On 19 December
2001, the Danish Immigration Service refused asylum. On 21 March 2002, the
Refugee Board upheld this decision and the complainant and his family were
asked to leave Denmark. The complainant requested the Refugee Board to
reopen the case, as he claimed that an opinion of the Department of Forensic
Medicine of 21 December 2000 ("opinion of 21 December 2000") was defective.
He also stated that his wife had been subjected to torture and that she had
had flashbacks during the Board hearing, as one of the Board members
reminded her of a Russian police officer. On 27 June 2002, the Refugee Board
considered his application but refused to reopen the asylum case.
The Complaint:
3.1 The complainant claims that as there is a real risk that he will be
subjected to torture on return to the Russian Federation, his forced return
would constitute a violation of article 3 of the Convention. He supports his
fear of torture with the allegation that he was previously tortured, was an
active member of the Citizens' Union, and was convicted of a criminal
offence.
3.2 According to the complainant, the opinion of 21 December 2000 on which
the Refugee Board largely based its decision not to grant him asylum was not
thorough and was open to interpretation. He claims that this opinion does
not deny that he suffers from chronic post traumatic stress disorder caused
by the effects of torture. He also contends that the opinion refers to scars
on his body caused by previous acts of torture.
3.3 In addition, he states that even if he does suffer from paranoid
psychosis (as stated in the same opinion) a return to the Russian Federation
would involve detention in prison, where he claims it is the ordinary
practice of the authorities to torture detainees, or detention in a closed
psychiatric institution.
The State Party's Observations on Admissibility and Merits and the
Petitioners Comments Thereon.
4.1 By note verbale, of 12 September 2002, the State party provided its
submission on the admissibility and merits of the communication. It submits
that the complainant has failed to establish a prima facie case, for
purposes of admissibility. If the Committee does not dismiss the
communication for that reason, the State party submits that no violation of
the provisions of the Convention occurred in relation to the merits of the
case.
4.2 The State party describes the organization and decision-making process
of the Refugee Board in detail and submits, inter alia, that, as is normally
the case, the complainant was assigned an attorney who had an opportunity as
well as the complainant to study the files of the case and the background
material before the meeting of the Board. The hearing was also attended by
an interpreter and a representative of the Danish Immigration Service.
4.3 With respect to the application of article 3 of the Convention to the
merits of the case, the State party underlines that the burden to present an
arguable case is on the complainant, in accordance with paragraph 5 of the
General Comment on the Implementation of article 3 adopted by the Committee
on 21 November 1997. By reference to this General Comment, the State party
points out that the Committee is not an appellate, quasi-judicial or
administrative body but rather a monitoring body. The present communication
does not contain any information that had not already been examined
extensively by the Danish Immigration Service and the Refugee Board. The
State party submits that, in its view, the complainant is attempting to use
the Committee as an appellate body in order to obtain a new assessment of a
claim already thoroughly considered by Danish immigration authorities.
4.4 As to whether there are substantial grounds for believing that the
complainant would be in danger of being subjected to torture if returned to
the Russian Federation, the State party refers to the decision of the
Refugee Board in its entirety. In the decision of the Refugee Board of 21
March 2002, it was held that the complainant and his wife had "not rendered
probable in a convincing and credible way that after their return to Russia
in 1994 and until their departure in 1999 they had been subjected to
asylum-relevant outrages, or that upon a return they would be at such risk
thereof that there was a basis for granting them residence permits under
section 7 of the Aliens Act."
4.5 The State party submits that the Refugee Board's assessment corresponds
to the practice of the Committee in considering past torture as one of the
elements to be taken into account when considering whether a complainant
would risk being tortured if returned to his country of origin. In this
regard, the Board attached decisive importance to the opinion of 21 December
2000, stating, inter alia, that no obvious physical or mental effects of
torture as stated by the complainant were found at his examination. The
Board therefore set aside the complainant's statement of having been
subjected to torture.
4.6 A translation of the opinion of 21 December 2000 has not been provided
but is interpreted by the State party. [FN2] During the examination, the
author claimed to have been subjected to various forms of torture. The
examination concluded that there were no signs of fresh violence. As signs
of older violence, were found a small non-specific scar on his back and on
his left foot. Moreover, there were depressions on the outer side of his
front teeth. It is stated that these changes might be due to corrosive
burns, but were not otherwise specific. The author was found to suffer from
a substantial personality change, which could be seen as a chronic
development of a post-traumatic stress disorder, but most likely the
disorder should be diagnosed as a paranoid psychosis (mental disorder with
delusions of persecution). By way of conclusion, the Department of Forensic
Medicine stated that no obvious physical or mental effects of torture as
stated in the case had thus been found directly.
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[FN2] On 5 November 2003, the State party provided a copy of the decision in
English for the Committees consideration.
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4.7 In setting aside the statement that the author had been subjected to
torture, the Board found that this decisively weakened the author's case. It
further noted that the statement of the author's wife was less convincing,
and that despite repeated questioning - she had only been able to explain
about the reason for the final decision on the departure in general terms.
The Board concluded that it could not accept either the author's statement
or his wife's statement about their asylum motive. Although it did not
entirely reject their statement's to the effect that the author had carried
out activities for the Citizens Union concerning civil rights issues, that
he had certain conflicts with the authorities and that a search had been
carried out of their home, upon an overall assessment of the information
provided it found that the author and his wife had not rendered probable in
a convincing and credible way that after their return in 1994 and until
their departure in 1999 they were subjected to asylum-related outrages, or
that upon their return they will be at such risk thereof.
4.8 The State party refers to the claim that the complainant's application
for asylum was refused even though the opinion of 21 December 2000 does not
exclude the possibility that the complainant suffers from post-traumatic
stress disorder. The State party argues (as is set out in the preceding
paragraph) that upon examination the complainant was found to suffer from a
substantial personality change which could be the result of post-traumatic
stress disorder, but is most likely diagnosed as paranoid psychosis. Thus,
the State party maintains that there is no medical information proving that
the complainant was subjected to torture.
4.9 According to the State party, in requesting the Refugee Board to reopen
his case, the complainant stated, inter alia, that he disagreed with the
opinion of 21 December 2000, as he claimed that his mental condition is
attributable to the effects of torture, and that the examination made by
doctors prior to preparing the opinion was not sufficiently thorough. The
State party notes that in refusing to reopen his case on 27 June 2002, the
Refugee Board found that no new information had come to light which would
provide a basis for assuming that the opinion of 21 December 2000 was
defective. [FN3] In the State party's view, the simple fact that the
complainant disagrees with the conclusion of the opinion does not alter
this.
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[FN3] It also notes the Board's reference to the fact that the complainant
can complain of this opinion in accordance with existing rules and states
that the complainant had previously complained of a psychiatric report
procured from the Clinic of Forensic Psychiatry for the purpose of the
opinion of the Department of Forensic Medicine. The clinic responded that it
could not comply with the complainant's request to alter the opinion as the
complainant and the clinic disagree on the conclusion.
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4.10 In setting aside the complainant's allegations of having been
previously tortured, the Refugee Board did not consider the complainant's
statement credible or substantiated. The same is said to be true of the
complainant's wife's statement, in respect of which the Board found that
despite repeated questioning she was only able to explain about the reason
for the final decision on the departure in general terms. The State party
also refers to the fact that several instances concerning statements of the
complainant and his wife were not very convincing. By way of example, the
State party refers to a memorandum of 26 November 2001 from the Ministry of
Foreign Affairs, which is mentioned in the Refugee Board decision. The
Ministry had been requested to comment on the authenticity of the transcript
of a judgment dated January 1996, allegedly against the complainant.
Although it could not establish whether the judgment was authentic, it found
that certain issues in the transcript were extraordinary. There was no
reference to the underlying criminal provisions, the punishment imposed was
meted out in parts of a year as opposed to whole years, which is unusual,
and the punishment imposed was imprisonment and not work camp, which would
have been normal in a case like this one. The State party also refers to the
complainant's allegation, in the context of his request to the Board to
reconsider his case, that his wife had been subjected to torture and that
she had flashbacks during the Board hearing as one of the Board members
reminded her of a Russian police officer. The Board noted that the
complainant's wife did not appear to the board as a person "in shock" during
the hearing and that this argument could not lead to a reversal of its
decision.
4.11 The State party refers to the Refugee Board's statement that it would
not entirely reject the complainant's statement to the effect that the
complainant had carried out activities for the Citizens' Union, that he had
certain conflicts with the authorities, and that his home had been searched.
However, the State party argues that it follows from the practice of the
Committee that "a risk of being detained as such is not sufficient to
trigger the protection of article 3 of the Convention". [FN4]
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[FN4] The State party refers I.O.A. v. Sweden, Complaint No. 65/1997, Views
of 19 May 1998.
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4.12 In addition, the State party argues that the complainant has not
substantiated that he is wanted by the authorities in his country of origin
and risks being arrested if he were to return. [FN5]
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[FN5] It refers to K.N. v. Switzerland, Complaint No. 94/1997, Views of 19
May 1998.
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4.13 In conclusion, the State party emphasizes that the Russian Federation
ratified the Convention on 3 March 1987 and recognized the competence of the
Committee against Torture to receive and process individual communications
under article 22 of the Convention. Thus, it argues, the complainant does
not risk return to a state which is not a State party to the Convention and
where the complainant does not have the possibility of applying to the
Committee for protection. [FN6]
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[FN6] Tahir Hussain Khan v. Canada, Complaint No. 15/1994, Views of 18
November 1994. Balabou Mutombo v. Switzerland, Complaint No. 13/1993, Views
of 27 April 1994 and S.C. v. Denmark, Complaint No. 143/1999, Views of 3
September 2000.
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5.1 In November 2002, the complainant commented on the State party's
submission. He reiterated his previous claims and contested the findings of
the Refugee Board. He provided detailed arguments to demonstrate the
authenticity of the January 1996 judgment against him and transmitted
medical opinions to demonstrate that his wife is unstable. He claimed that
the Refugee Board ignored her allegation that she was raped while in police
detention in 1995.
5.2 The complainant does not provide details of his wife's case. His wife
gave details of events after their return to the Russian Federation in 1994
in her asylum application of 16 September 1999 and 20 September 1999, and in
a further interview of 9 November 1999. She alleged that after their return,
she had been detained for four days during which she was separated from her
child. After returning to her home she was interrogated again and given a
blow to the head. She was subsequently charged with having left the Russian
Federation without permission and was given a suspended sentence. In her
interview on 9 November, she alleged that until 1995 she was summoned every
week to the police station to be interrogated. At this interview in November
1999, she also alleged that in November 1995, she had been raped by more
than one policeman. In January 1999, and during a search of their house,
both her husband and son were beaten.
5.3 The complainant submits that if the State party does not entirely reject
his statement that he carried out activities for the Citizens' Union, that
he had certain conflicts with the authorities, and that his home had been
searched, it must be aware that it is probable that he was subjected to
torture. In this regard, he attaches information from various
non-governmental organizations referring to the torture inflicted on human
rights activists and detainees in the Russian Federation. He also claims
that the techniques employed by the torturers often leave few or no physical
traces. Finally, he forwards a copy of a medical opinion from a clinical
psychologist in Norway, dated 25 November 2002, in which he is described as
a "torture victim".
5.4 By letter of 12 August 2003, the complainant informed the Committee that
although he and his family had spent some time in Norway since the
registration of his complaint by the Committee, for fear of being deported
by the Danish authorities, they have since returned to Denmark where they
are staying with friends (no dates are provided). He also attaches another
letter, dated 18 April 2000, from a psychologist stating that the
complainant has "severe symptoms of P.T.S.D. (sleeping disorder, stress,
psycho traumatic suffering) as a result of imprisonment and torture in his
native country."
Issues and Proceedings Before the Committee
6.1 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 the exhaustion of domestic remedies is not contested by the State
party. While the State party alleges that the complainant has failed to
establish a prima facie case for the purpose of admissibility, the Committee
notes that it has not clarified the reasons on which it makes this
assessment. Indeed, the Committee cannot find any reason under rule 107 of
its rules of procedure to consider this communication inadmissible.
6.2 The Committee must decide whether the forced return of the petitioner to
the Russian Federation 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. Conversely, 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.
6.3 The Committee notes that the complainant's main argument relates to the
way in which the Refugee Board reached its decision not to grant him asylum,
in particular its interpretation of the medical opinion of 21 December 2000
addressing the question of whether the complainant had been subjected to
torture. The Committee is not persuaded by the complainant's arguments that
he faces a real and personal risk of torture if returned to the Russian
Federation at the present time.
6.4 Consequently, 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 deportation of the
complainant to the Russian Federation would not constitute a breach of
article 3 of the Convention.
[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.]
* Pursuant to rule 104 of the Committee's rules of procedure, Mr. Yakovlev
did not participate in the examination of this complaint.
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