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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 22 November 2007,
Having concluded its consideration of complaint No. 303/2006, submitted to
the Committee against Torture on behalf of T. 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
complainant, his counsel and the State party,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is T. A., an Azeri national awaiting deportation from
Sweden to Azerbaijan. He claims that his deportation to Azerbaijan would
constitute a violation 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 9 October 2006, the Rapporteur for new complaints and interim
measures requested the State party not to deport the complainant to
Azerbaijan while his case is under consideration by the Committee, in
accordance with rule 108, paragraph 1, of the Committee's rules of
procedures. On 24 April 2007, the State party acceded to the Committee's
request.
The Facts as Presented by the Complainant
2.1 The complainant is an engineer and became a member of the AXCP
(Azerbaijan National Front Party) at age 19. He became head of the young
politicians. He is the nephew of S. M., who became the Minister of Internal
Affairs of Azerbaijan in 1992. In 1993, a new party came to power and S. M.
was arrested and sentenced to 8 years' imprisonment because of his AXCP
membership. S. M. managed to escape from Azerbaijan and currently resides in
Russia.
2.2 The complainant was arrested and tortured on several occasions since the
new government came to power, including during a demonstration. He claims
that, although he was told that the reason for his arrest was his criticism
of the ruling party, the real reason was his relationship with S. M. On 15
October 2003, he was sent to Baku to observe the presidential elections.
Following the elections, riots broke out in the town. The complainant was
arrested, together with some other participants, and tortured. He was
beaten, insulted and kept in water for over a day. He was released after
several days. He claims that the torture inflicted upon him resulted in a
kidney condition, which worsened at the beginning of 2004. He submits
medical reports issued from a hospital in Sweden, which support his claim
that his kidney condition has become chronic and that kidneys could stop
functioning at any time, with possible lethal consequences. [FN1]
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[FN1] See footnote 2 below.
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2.3 After the incident in Baku, the complainant was constantly persecuted.
On one occasion, he was taken to a police station by police officers and was
forced to leave his bag outside. He claims that some other police officers
subsequently planted a gun in his bag, on which basis he was charged with
murder and imprisoned. He escaped from prison on the way to court, having
been helped by some friends. With the help of his uncle, he left Azerbaijan
for Russia. On 31 March 2005, the Swedish Migration Board rejected his
application for asylum. This decision was confirmed by the Aliens Appeals
Board on 20 January 2006.
The Complaint
3. The complainant claims that his deportation from Sweden to Azerbaijan
would constitute a violation of article 3 of the Convention against Torture,
as he fears that he will be arrested and exposed to torture as a result of
his own political activities, past torture and relationship with his uncle,
the ex-Minister of Internal Affairs.
State Party's Observations on the Admissibility And Merits
4.1 On 24 April 2007, the State party provided its submissions on the
admissibility and the merits. It sets out the relevant provisions of the
1989 Aliens Act (which has since been repealed) pointing out that several
provisions reflect the same principle as that set out in article 3,
paragraph 1, of the Convention. Thus, the national authority conducting the
asylum interview is naturally in a good position to assess the information
submitted by asylum seekers. On 9 November 2005, temporary amendments were
enacted to the 1989 Aliens Act. On 15 November 2005, these amendments
entered into force and were to remain in force until the entry into force of
a new Aliens Act on 31 March 2006. The temporary amendments introduced
additional legal grounds for granting a residence permit with respect to
aliens against whom a final refusal of entry or expulsion order was issued.
4.2 According to the new Chapter 2, section 5 b of the Aliens Act, if new
circumstances come to light concerning enforcement of a refusal-of-entry or
expulsion order that has entered into force, the Swedish Migration Board,
acting upon an application from an alien or of its own initiative, may grant
a residence permit, inter alia, if there is reason to believe that the
intended country of return will not be willing to accept the alien or if
there are medical obstacles to enforcing the order. Furthermore, a residence
permit may be granted if it is of urgent humanitarian interest for some
other reason. The 2005 Act establishes a new order for examination and
determination of asylum applications and residence permits. These cases are
now normally dealt with by three instances: the Migration Board, the
Migration Court and the Migration Court of Appeal.
4.3 According to the State party, the Migration Board rejected the
complainant's application for asylum on five grounds: firstly, the general
situation in Azerbaijan did not in itself constitute grounds for asylum;
secondly, the complainant had spent four months after his departure from
Azerbaijan in Moscow and Berlin but had failed to apply for asylum at the
first safe country he arrived in; thirdly, the AXCP party is an opposition
party in Azerbaijan and the Board was not convinced by his assertion that he
was a leading party member at age 19; fourthly, the Board did not find it
credible that, as claimed by the complainant, his trial for murder was to be
held only ten days after his arrest, that he did not know the name of the
alleged victim and that he had managed to escape from police custody;
fifthly, the Board found that the applicant's health was not such as to
grant him a residence permit on humanitarian grounds. The complainant's
appeal to the Aliens Appeal Board was rejected on 20 January 2006. The
Appeal Board questioned the veracity of his statements concerning his escape
from the police and the fact that despite being wanted by the authorities he
had managed to leave Azerbaijan. It also referred to the improved human
rights situation in Azerbaijan, since its membership of the Council of
Europe (CoE) in January 2001 and the view that membership of opposition
political parties do not generally involve a threat of reprisals from the
authorities unless the individuals concerned are in leading positions.
Lastly, the author's health condition was not considered severe enough to
constitute grounds for a residence permit on humanitarian grounds. [FN2]
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[FN2] The Migration Board assessed in this regard the medical certificates
provided by the complainant. He submitted that a medical certificate dated
20 January 2005, stated that he had been subjected to blows with blunt and
sharp instruments against the back of his hands, trunk, sternum, neck and
head. He also presented a medical report, dated 10 March 2005, stating that
he suffered from a kidney disorder called "nefrotic syndrome", which is a
condition involving too low levels of albumin. It states that his condition
may deteriorate if he does not get adequate treatment and that there is a
certain long term risk that he might require chronic dialysis treatment.
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4.4 The Migration Board decided on its own initiative to examine whether he
qualified for a residence permit under the temporary wording of Chapter 2,
Section 5, b of the Aliens Act and appointed counsel to represent him before
the Board. On 8 September 2006, it found that there were no new
circumstances or arguments made by the complainant and that the arguments
submitted mostly concerned the general situation in Azerbaijan. The medical
reports demonstrated that he suffered from a chronic disease, but that it
was not possible to conclude that this condition was life threatening. It
stated that adequate medical care was available in Azerbaijan and that
financial problems in obtaining medical care or a lower standard of medical
care provided in Azerbaijan than in Sweden does not in itself constitute
grounds for a residence permit.
4.5 On 4 December 2006, the complainant filed an application for a stay of
the enforcement of the expulsion order, residence permit and re-examination
under chapter 12, Section 19 of the 2005 Aliens Act. On 27 March 2007, the
Migration Board rejected his application, concluding that no new
circumstances were invoked by him, that the allegation concerning torture
had been addressed and that the situation in Azerbaijan had not deteriorated
since the last decision in any decisive way.
4.6 On admissibility, despite the State party's acknowledgment that the
complainant has exhausted domestic remedies, it submits that the complaint
is inadmissible as manifestly illfounded, and inadmissible ratione materiae,
as falling outside the scope of the provisions of the Convention. On the
latter argument, it specifically states that the claims relating to the
complainant's health condition fall outside the scope of article 3, as
according to article 1 of the Convention the definition of torture relates
to severe pain and suffering "inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in
an official capacity".
4.7 On the merits, the State party refers to the findings of the domestic
authorities and adds the following. As to the general human rights situation
in Azerbaijan, it submits that Azerbaijan has been a party to the Convention
against Torture since 1996, has made a declaration under article 22 to deal
with communications and has ratified several other human rights instruments
including the International Covenant on Civil and Political Rights and the
European Convention on Human Rights. It has also been a party to the CoE
since January 2001 and is a State party to the European Convention on Human
Rights. The CoE has been monitoring the human rights situation and it
appears that some progress has been made. An example of such has been that a
number of persons defined by the CoE as political prisoners have been
released by Azerbaijan in recent years. However, the State party admits that
although positive results have been achieved, Azerbaijan is still reported
as committing numerous human rights abuses, including beatings and torture
of persons in custody by members of the security forces. It also submits
that, while it does not wish to underestimate these concerns, they do not in
themselves suffice to establish that the return of the complainant would
entail a violation of article 3. The State party also highlights a recent
decision by the Committee, [FN3] in which it took note of the State party's
argument that although human rights abuses are still being reported in
Azerbaijan, the country has made some progress towards improving its human
rights record. In light of this, inter alia, the Committee concluded that
the removal of the complainant to Azerbaijan in that case would not
constitute a breach of article 3 of the Convention.
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[FN3] A.H. v. Sweden, Communication No. 265/2005, Views adopted on 16
November 2006.
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4.8 In December 2006, the State party requested the assistance of the
Swedish Embassy in Ankara about some of the issues raised in the case. The
Embassy had most of the documents submitted to the Committee and also some
other documents submitted by the complainant to the national authorities. It
hired a lawyer, specializing in human rights, who it had previously engaged.
It confirmed that the information concerning the complainant's family and
studies was correct, that his identity card and birth certificate were
genuine, but that it was not possible to verify the authenticity of his
passport or obtain information on whether he left Azerbaijan legally. It
affirms that, although he was a member of the AXCP, his status was of a
regular member and he was never an assistant to the chairman, Q. H., as
alleged by the complainant. However, for a short period, he served as an
unofficial body guard to Q. H. It affirms that his uncle was chief of police
and later became Minister of the Interior. It also affirms that he spent
eight years in prison, but after his release moved of his own free will to
Russia. He presently works as a businessman and regularly travels between
Azerbaijan and Russia.
4.9 On the authenticity of the documents provided by the complainant, the
Embassy reported the following: firstly, regarding a card allegedly
certifying his status as an election observer during the election in 2000,
G. A., Chairman of the AXCP's General Assembly stated that he cannot recall
that any such document had been issued to the complainant. According to the
person that takes care of election matters at the party's office, the kind
of election observer document presented by the complainant was not issued
for the election in 2000. In view of this information, the Embassy concluded
that the information was false. Secondly, regarding three documents
submitted during the national proceedings (two of which were submitted to
the Committee), allegedly signed by G. A., Chairman of the AXCP, the
Chairman confirmed that he did sign these documents but cannot verify the
information therein, as he only signed these documents having been asked by
the complainant's family to do so and because of his close relationship with
the complainant's uncle. Thirdly, the Embassy notes that a newspaper article
published in "Azaddliq" on 17 February 2005, although confirmed to be
genuine, states that the complainant left Azerbaijan because of his health.
Fourthly, regarding a statement allegedly signed by F. U. of the World
Azerbaijani Congress, F. U. himself stated that it was false. Fifthly,
regarding two documents alleged issued by the organization Human Rights in
the XXI Century the Embassy reported that both documents are false. Lastly,
as to two documents issued by the Azerbaijan Foundation of the Democracy
Development and Human Rights Protection, these were also reported to be
false.
4.10 According to the State party, the Embassy has been unable to find any
information to support the complainant's allegations either that he was
summoned by the police in 2003 and 2004, or that his brother was arrested in
August 2005 as he claimed to the domestic authorities. The Embassy concludes
that the human rights situation in Azerbaijan deteriorated during the autumn
of 2006, in particular regarding the freedom of the press. However, it has
not affected the opposition's activities in the country. The opposition
remains divided in fractions and is not very powerful. There is no reason
for the authorities to be interested in the activities of a member of the
opposition at a low level. As to his relationship with S. M., the latter
himself travels regularly to and from Azerbaijan without any difficulties.
According to information obtained from individuals close to the complainant,
his sole reason for leaving Azerbaijan was to seek treatment for his kidney
problem. The State party's submits that this is confirmed in an article
submitted by the complainant, in which the author's own brother confirms
that this was the reason for his departure.
4.11 The State party submits that the fact that the complainant has
submitted a number of false documents to the Swedish authorities and the
Committee raises serious doubts as to his credibility, as well as raising
issues regarding the accuracy of the statements he has made in support of
his claims of a violation of article 3. Such doubts are also relevant in
respect of his allegation that he was tortured previously in Azerbaijan.
Even if medical evidence concludes that he has suffered from violence with
blunt and sharp instruments, the State party submits that there is no
evidence to suggest that this violence was caused by the Azerbaijani
authorities or to support the allegation that his kidney problems arose as a
result of the torture he was allegedly subjected to while detained in 2003.
There is, the State party submits, in fact a medical report from 10 March
2005, which suggests the contrary when stating that there "is no connection
between imprisonment or physical abuse and the illness of nefrotic
syndrome". The Embassy's investigation also reported that it is highly
unlikely that when the complainant tried to leave the country in March 2004
he was arrested on suspicion of murder and illegal possession of drugs and
that ten days later while being transported to trial he managed to escape.
The State party submits that the author is not wanted by the authorities nor
is he under indictment in Azerbaijan.
Complainant's Comments on the State Party's Observations on the
Admissibility and the Merits
5.1 The author submits that he stayed in Moscow only until arrangements had
been made for his trip to Sweden, and that he only passed through Germany.
He was active in the youth section of the political party, which accounts
for the responsibility given to him at such a young age. He and his brother
preferred to have the police think that the former had left the country due
to medical problems, so as not to draw the attention of the authorities to
the real reason he fled, i.e. to seek asylum. According to the medical
opinions from the Crisis and Trauma Centre, Danderyd Hospital, the
complainant's clinical condition is consistent with the circumstances he
described, and that his post-traumatic stress disorder and physical illness
was caused as a direct result of torture in his home country.
5.2 As to the general human rights situation in Azerbaijan, the complainant
states that there are independent sources which describe the current human
rights situation as worse than before, particularly with respect to freedom
of speech, arbitrary and politically motivated arrests, poor conditions of
detention, and torture in police custody. [FN4] Bearing in mind the
systematic oppression of political dissidents and journalists, it was not
improbable to the complainant that the individuals referred to in paragraph
4.9 would not wish to be affiliated with documents expressing severe critic
against the regime. Some of those individuals contacted had already served
long prison sentences and thus have an even greater reason not to let the
authorities know about their political activities. As to the lack of
documentation of the police's interest in the complainant, the latter
concludes that a regime with a notorious record of arbitrary detention and
human rights abuses against detainees often purposely fails to register
them, to avoid accountability for such violations. The author adds that
according to Swedish government's report on the human rights situation in
Azerbaijan, political dissidents have on several occasions been convicted to
long prison sentences, on charges of fabricated drug crimes.
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[FN4] Human Rights Watch Report, January 2007; Amnesty International Report,
May 2007; and U.S. State Department Country Situations Reports, March 2007.
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5.3 In his appeal of 5 June 2007 to the Migration Court, the complainant
presented new information, including articles published in Turkish
newspapers dated January 2007 where he is cited as the source for
information from 2001 implicating a Turkish General in the military training
of terrorist groups in Azerbaijan. The complainant stated that the article
attracted much attention notably because of the allegation that the group
was involved in the assassination of a Turkish journalist.
Further Submissions by the State Party
6. On 20 August 2007, the State party informed the Committee that on 6 July
2007, the Migration Court in Malm� rejected the author's appeal of 5 June
2007. Regarding the documents submitted by the complainant to the Migration
Court (including, inter alia, articles from Turkish newspapers) the
Migration Court held that these were not such new circumstances that could
constitute grounds for impediments of enforcement. The State party also
informed the Committee that the complainant had filed an appeal against the
Migration Court's judgment with the Migration Court of Appeal. On 11
September 2007, the State party informed the Committee that on 31 August
2007, the Migration Court of Appeal rejected the complainant's request for
leave to appeal, decision which is final.
Issues and Proceedings Before the Committee
Consideration of Admissibility
7.1 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. 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. It notes the State
party's confirmation in its submissions that domestic remedies have been
exhausted.
7.2 The Committee finds that no further obstacles to the admissibility of
the communication exist. It considers the complaint admissible and thus
proceeds immediately to the consideration of the merits.
Consideration of the Merits
8.1 The issue before the Committee is whether the removal of the complainant
to Azerbaijan would violate the State party's obligations 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 or she would be in
danger of being subjected to torture.
8.2 In assessing the risk of torture, the Committee takes into account all
relevant considerations, including the existence in the relevant State of a
consistent pattern of gross, flagrant or mass violations of human rights.
However, the aim of such determination is to establish whether the
individual concerned would be personally at risk in the country to which he
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 a sufficient ground for determining that a particular person
would be in danger of being subjected to torture upon his or her 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.
8.3 The Committee recalls its General Comment No.1 on article 3, which
states that the Committee is obliged to assess whether there are substantial
grounds for believing that the complainant 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. The risk need not be highly probable, but it must be personal and
present. In this regard, in previous decisions, the Committee has determined
that the risk of torture must be foreseeable, real and personal.
8.4 The complainant claims that he will be at risk of torture if returned to
Azerbaijan, due to his political activities, previous torture, and the
relationship with his uncle, the ex-Minister of Internal Affairs. Regarding
his past political activities, while the State party does not contest that
the complainant appears to have been a regular member of the AXCP, it does
contest that he could be considered a prominent person at risk of torture
upon his return to Azerbaijan. With respect to the articles appeared in the
Turkish media in January 2007, which the complainant alleges have had the
result of increasing interest in him, the Committee observes that these
articles refer to information the complainant made public in 2001, and that
he has failed to show how this information may put him in danger if he is to
return to Azerbaijan.
8.5 As to the possibility of the petitioner suffering torture at the hands
of the State upon his return to Azerbaijan, the Committee has taken due note
of his claim that he was previously detained and tortured by members of the
Azeri police. It further observes that the petitioner provided medical
reports attesting to injuries that were consistent with the circumstances
described by him. However, the Committee observes that even if the
complainant was detained and tortured in Azerbaijan in the past, it does not
automatically follow that, four years after the alleged events occurred, he
would still be at risk of being subjected to torture if returned to
Azerbaijan in the near future. Additionally, while the Committee
acknowledges that the complainant suffers from a kidney ailment, he has not
clearly shown that this condition is the result of previous torture nor that
appropriate medical care would be unavailable to him in Azerbaijan.
8.6 Concerning the fears about his relationship with his uncle, it would
appear, and this is uncontested, that the later freely travels between the
Russian Federation and Azerbaijan without any restriction. Thus, his
relationship with S. M. would not appear to have any negative consequences
affecting the complainant's return. The Committee notes the State party's
statement that the author is neither charged with a crime in Azerbaijan nor
subject to an arrest warrant by Azeri authorities. Consequently, it finds
that the complainant has not provided evidence in support of his contention
that he would run a real risk of arrest upon return.
8.7 The Committee notes that the complainant has provided a number of
documents to the domestic authorities and to the Committee, which he claims
corroborate his statement of the facts. The Committee recalls that the State
party challenges the complainant's credibility and the authenticity of part
of the documentation submitted by him, based on the investigations conducted
by its embassy in Turkey. It observes that the State party has not
challenged the authenticity of the medical certificates submitted by the
author. The Committee recalls that according to its General Comment No. 1
the author has not satisfied his burden to present an arguable case. The
Committee considers that the complainant has failed to validate the
authenticity of the documents related to his political activities prior to
leaving Azerbaijan.
9. For the abovementioned reasons, the Committee concludes that the
complainant has failed to substantiate his claim that he would face a
foreseeable, real and personal risk of being subjected to torture upon his
return to Azerbaijan.
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 removal of the complainant to
Azerbaijan 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.]
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