CAT/C/24/D/143/1999

S. C. (name withheld) v. Denmark, Communication No. 143/1999,

U.N. Doc. CAT/C/24/D/143/1999 (2000).

Communication No. 143/1999

Submitted by: S.C. (name withheld) [represented by counsel]

Alleged victims: The author

State party: Denmark

Date of communication: 17 August 1999

The Committee against Torture, established under article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 10 May 2000,

Having concluded its consideration of communication No. 143/1999,

submitted to the Committee against Torture under article 22 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Having taken into account all information made available to it by the author

of the communication, his counsel and the State party,

Adopts its views under article 22, paragraph 7, of the Convention.

1.1 The author of the communication is Ms. S.C., born on 21 August 1965,

of Ecuadorian origin, currently seeking asylum in Denmark together with

her three minor children. The author claims that she would risk torture if she

is returned to Ecuador and that her forced return to that country therefore

would constitute a violation by Denmark of article 3 of the Convention. The

author is represented by the Danish non-governmental organization "Let

Bosnia Live".

1.2 In accordance with article 22, paragraph 3, of the Convention, the

Committee transmitted the communication to the State party on 29

September 1999. Pursuant to rule 108, paragraph 9, of the Committee's rules

of procedure, the State party was requested not to expel the author to

Ecuador pending the consideration of her case by the Committee. In a

submission of 29 November 1999 the State party informed the Committee

that the author and her three minor children would not be expelled to her

country of origin while her communication was under consideration by the

Committee.

The facts as presented by the author

2.1. The author states that she became a member of the illegal opposition

party Partido Roldosista Ecuatoriano (PRE) in Santo Domingo in April

1995, but underlines that she had been an active supporter since 1985.

According to the author, she was arrested on 28 May 1994 after having

distributed political propaganda material. She was first held in detention for

three days, when she was allegedly ill-treated by being pulled by the hair,

beaten and threatened every three hours. The author further states that she

was given a six-months probationary sentence, during which she was

deprived of her papers, including her passport, and her civil and political

rights as an Ecuadorian national.

2.2 The author alleges that she was again detained on 13 December 1995,

after having organized and participated in a unauthorized political

demonstration of about 200 persons. According to the author, she was kept

in detention for 10 days and allegedly starved, kicked and beaten with

truncheons before she being sentenced to 10 days' imprisonment. To support

her statement, the author refers to copies of medical records from the

medical doctor she visited after her release.

2.3 On 26 April 1996, the author was appointed political leader for a

women's group of the party. Her main tasks were to organize meetings for

women, particularly from poor neighbourhoods, and inform them about their

rights. She also provided assistance to families where one or both parents

had disappeared.

2.4 The author's fiancé, who was also active in PRE, allegedly disappeared

in 1996 after having been taken away by police in plain clothes.

2.5 According to the author, she was again detained on 27 January 1997 for

having participated in a political demonstration in Santo Domingo. The

author was allegedly sentenced to six months' imprisonment and claims that

during her imprisonment she was starved, electric chocks were applied to

her fingers and she was raped. After her release, the author contacted a

doctor, but no medical records are available. The author further states that,

while she was in prison in 1997, her home was broken into and everything

was taken, and that she has reason to believe that the police were

responsible.

2.6 The author states that at the time of her release she was told by the

police to leave the country. However, instead, she joined her family in the

mountains, where they had fled to prevent the author's children being taken

by the authorities. While in hiding, the author learned from her sister that a

warrant for her arrest had been issued because she had not left the party and

had not reported to the police, after her release, as ordered. The author hid in

the mountains for six months with her children before she could leave the

country, allegedly with the help of PRE.

2.7 The author left Ecuador by car with her children and entered Colombia

on 15 August 1998. She travelled on a valid passport issued in September

1996. On 16 August 1998 she left Colombia and arrived in Denmark on 20

August 1998 after having stayed two days in the Netherlands. The author

immediately applied for asylum.

2.8 The author's request for asylum was turned down by the Danish

Immigration Service on 30 October 1998. Subsequent to her appealing the

Immigration Service's decision, the Refugee Board confirmed that decision

on 17 February 1999. On 24 March 1999, the non-governmental

organization "Let Bosnia Live", on behalf of the author, requested the Board

to re-examine the case in light of new information about the author's

political activities, including a letter from PRE and a copy of an order for

her arrest issued by the Ministry of the Interior, dated 26 February 1999. On

28 May 1999, the Board refused the author's request to renew her

application for asylum. On 30 July 1999 an appeal was made to the Ministry

of Interior on humanitarian grounds. It was refused on 12 August 1999.

2.9 The author further submits that the case is not and has not been the

subject of investigation or settlement, by any other international body.

Complaint

3. With reference to the facts presented, the author fears that she will be

subjected to renewed torture if she is returned to Ecuador and that her forced

return would therefore constitute a breach by Denmark of article 3 of the

Convention.

Observations by the State party

4.1 In a submission of 29 November 1999, the State party informs the

Committee that it does not contest the admissibility of the author's

communication as to the form. However, the State party submits that the

author has failed to establish a prima facie case for the admissibility of her

communication under article 22 of the Convention and that the Committee

should therefore declare it inadmissible. If the Committee does not dismiss

the communication for that reason, the State party submits that no violation

of the provisions of the Convention has occurred in relation to the merits of

the case.

4.2 The State party confirms the author's explanation of the procedure used

to exhaust domestic remedies, adding that when she filed her initial

application for asylum, the author exercised her right to do so in her own

languages. During the detailed and comprehensive initial personal interview

conducted with her by the Danish Immigration Service, an interpreter was

present at all times. It is further stated that the proceedings of the Refugee

Board include the participation of the asylum-seeker and his or her attorney

and an interpreter, as well as of 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 is on the author

to present an arguable case, in accordance with paragraph 5 of the General

Comment on the Implementation of article 3 adopted by the Committee on

21 November 1997.

4.4 In further reference to the above-mentioned General Comment, the State

party points out that the Committee is not an appellate, quasi-judicial or

administrative body but rather a monitoring body. It is emphasized that the

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 author is attempting to

use the Committee as an appellate body in order to obtain a new assessment

of a claim already considered by Danish immigration authorities.

4.5 In its decision of 17 February 1999 confirming the Immigration

Service's assessment of 30 October 1998, the Refugee Board found that it

was not convinced that the author had been subjected to persecution as a

consequence of political activities, prior to her departure from Ecuador, nor

that, upon return to her country of origin, the author would be at risk of

persecution, including torture.

4.6 The State party underlines that, according to the practice of the

Committee, it is decisive for the assessment of the merits of the case

whether information on conditions in the recipient country supports the

author's claim. The Committee's attention is drawn to the fact that PRE, in

which the author allegedly has had a prominent position, is not an illegal

political party as claimed by the author, but one of the largest parties in

Ecuador, whom the author was not able to identify, was Head of

Government in 1996.

4.7 The State party refers to the findings of the Refugee Board that the

author's statements regarding the alleged detentions were characterized by

some uncertainty.

4.8 Further, the State party underlines that, during her interview with the

Danish Immigration Service, the author produced letters addressed to the

Refugee Board by the Party Committee of PRE, a copy of two medical

certificates dated 1 June 1994 and 23 December 1995, allegedly issued by

her own medical doctor, and a warrant of her arrest dated 12 August 1998.

In the interview with the Immigration Service, the author stated that the

warrant for her arrest had been issued at that time because she had not

resigned from the party as instructed. However, before the Board, the author

stated that the document had been issued since she had not left the country

as ordered. She had not been served with the warrant directly, but had

received a copy from a friend employed by the police. The author only had

copies of the medical certificates, allegedly because she did not have any

permanent address and was afraid to have original documents in her

possession. Taking into consideration the contents of the documents and the

author's related statements, compared with the other information on the case,

the Board found that the documents were not of a nature to alter its

assessment of the case.

4.9 It is submitted that the author's statement regarding rape during her most

recent detention should be given little weight, since this information was not

brought forward by the author until the proceedings before the Board. Given

that the most recent Immigration Service interview with the author prior to

the Board's proceedings was conducted by a woman, and given that the

author, according to her own statements, had been politically active for

women's rights, it seems to decrease her credibility that no evidence to this

effect had previously been given, either to the authorities or to her own

attorney.

4.10 As to the Refugee Board's decision of 28 May 1999 not to reopen the

case, the State party states that the Board emphasized that the new

information referred to by the author as new did not contain any elements

beyond those already considered by the Board and the Immigration Service

during the initial proceedings.

4.11 The State party also draws the attention of the Committee to the

assessment of the Board that it seemed improbable that the author would

have been deprived of her identity papers for about one year after her

alleged release in December 1995 and nevertheless be able to obtain a valid

passport in September 1996. Furthermore, it is noted that the author gave

inconsistent accounts to the immigration authorities regarding her departure

from Ecuador. She has stated that she left the country legally on 15 August

1998 with a genuine passport, but on another occasion she stated that her

departure was actually illegal as she travelled in the evening, did not show

any passport and was not supposed to leave Ecuador because she was the

subject of an arrest warrant.

4.12 In conclusion, the State party points out that the Board did not

necessarily deny that in connection with demonstrations the author might

have been detained as explained, but the detentions themselves were not a

sufficient ground for granting asylum. This would still be the case even if

the author had in fact been subjected to physical ill-treatment in connection

with these detentions. The State party argues that it also follows from the

practice of the Committee that a risk of being detained is not as such

sufficient to trigger the protection of article 3 of the Convention and that

there is no actual evidence, including medical evidence, supporting the

author's claim that she has previously been subjected to torture.

4.13 Finally, the State party notes that Ecuador has not only signed the

Convention against Torture but also, by a declaration of 6 September 1988,

recognized the competence of the Committee to receive and consider

individual communications pursuant to article 22. The State party is aware

that the Committee has stated that the fact that a State has acceded to the

Convention and recognized the competence of the Committee under article

22 is not in itself sufficient to preclude a return to that country being

contrary to article 3, but importance should nevertheless be given thereto.

Comments by the representative of the author

5.1 In his comments on the State party's submission, the representative of

the author refers to the State party's position that the author has the

responsibility of presenting "an arguable case" that she would be in danger

of being subjected to torture upon return to her home country. According to

the representative, an arguable case has indeed been presented in the light of

the author's previous experiences of persecution, including torture, and

owing to her political activities for poor Indian women in Ecuador. Further,

the representative points out that, according to the practice of the

Committee, it is note necessary that the risk of torture be serious, in the

sense of being highly likely to occur; the Committee has previously clearly

stated that there need only be "more than a mere possibility of torture".

5.2 The representative considers that the State party's argumentation that

PRE, contrary to what has been stated by the author, is a legal party and that

its leader was President in 1996, is irrelevant to the main question under

consideration, i.e. whether the author runs a risk of being subjected to

torture upon return to Ecuador. The argument of the State party is based on

opinion and misunderstandings rather than fact.

5.3 The representative argues that more importance should be attached to

the two existing letters from the PRE local leadership describing the danger

run by the author if she returned to Ecuador in view of her having been the

party's leading promoter for women's rights. The Committee's attention is

drawn to the letter dated 20 August 1999, which indicates that the author's

replacement as leader of the party's Women's Front has already been

arrested. The fact that a warrant for her arrest was issued as late as 26

February 1999 by the Ministry of the Interior ought to indicate that the

author is not wanted merely for disturbing public order in the streets through

political manifestations.

5.4 The representative further recalls that the author was raped in prison by

prison staff, who cooperate closely with the local police. It is therefore not

surprising that no medical evidence could be secured. The fact that the

author did not reveal this information to the Danish authorities at an earlier

stage could be explained by the fact that, like other women in similar

situations, she has tried to suppress the event from her consciousness and

that for obvious reasons she has limited trust in police officers and

interrogators.

5.5 The representative notes that the State party does not find it credible that

the author obtained a valid passport while presumably being persecuted by

Ecuadorian authorities and takes this as evidence of her not being at risk of

torture. This argument is inconsistent with the State party's position that all

foreign nationals, including asylum-seekers, travelling to Denmark should

apply for valid visas at the nearest Danish consulate before departure.

5.6 Finally, the representative submits that the fact that Ecuador is a party of

the Convention is of no relevance. The question is whether Ecuador is in

fact implementing the rights provided by Convention, in particular the right

of leading opposition politicians not to be subjected to torture.

Issues and proceedings before the Committee

6.1 Before considering any claim in a communication, the Committee

against Torture must decide whether or not a communication 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.

6.2 The Committee is further of the opinion that all domestic remedies have

been exhausted and finds that no further obstacles to the admissibility of the

communication exist. Since both the State party and the author's

representative have provided observations on the merits of the

communication, the Committee will proceed with the consideration of those

merits.

6.3 The issue before the Committee is whether the forced return of the

author to Ecuador would violate the obligation of Denmark 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.

6.4 The Committee must decide, pursuant to article 3, paragraph 1, of the

Convention, whether there are substantial grounds for believing that the

author would be in danger of being subjected to torture upon return to

Ecuador. In reaching this decision, the Committee 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 return. 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 return to that country; specific grounds must exist

indicating 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.

6.5 From the information submitted by the author, the Committee notes the

author's activities for women's rights in Ecuador. It further notes that the

State party, although expressing doubts as to the complete veracity of the

author's account, do not necessarily dispute that the author might have

encountered difficulties with the Ecuadorian authorities because of her

political activities. The Committee recalls, inter alia, that the author has

carried out her political activities as a member of a lawful political party of a

country which has ratified not only the Convention against Torture, but has

also made the optional declaration under article 22 of the Convention.

6.6 The Committee notes that for the purposes of article 3 of the

Convention, the individual concerned must established that he or she faces a

foreseeable, real and personal risk of being tortured in the country to which

he or she is returned.

6.7 It is the view of the Committee that the information presented by the

author does not show substantial grounds for believing that she runs a

foreseeable, real and personal risk of being tortured if she is returned to

Ecuador.

7. 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 author to Ecuador does not constitute a breach of article 3 of the

Convention.

[Done in English, French, Russian and Spanish, the English text being the

original version.]