CAT/C/26/D/128/1999

X.Y. (name deleted) v. Switzerland,

Communication No. 128/1999,

U.N. Doc. CAT/C/26/D/128/1999 (2001).

Communication No. 128/1999

Submitted by: X.Y. (name deleted) [represented by counsel]

Alleged victim: The author

State party: Switzerland

Date of the communication: 2 March 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 15 May 2001,

Having concluded its consideration of communication No. 128/1999,

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 by the

author of the communication and the State party,

Adopts the following decision:

1.1 The author of the communication, Mr. X.Y., born on 20 March

1960, is a Syrian national of Kurdish origin. He currently resides in

Switzerland, where he applied for political asylum. His application

was rejected, and he maintains that his forcible repatriation to the

Syrian Arab Republic would constitute a violation by Switzerland of

article 3 of the Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment. He has asked the Committee

to take emergency measures, since at the time he submitted his

communication he was liable to imminent expulsion. He is

represented by counsel.

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

Committee transmitted the communication to the State party on 12

March 1999. At the same time the State party was requested, pursuant

to rule 108, paragraph 9, of the Committee's rules of procedure, not to

expel the author to the Syrian Arab Republic while his

communication was under consideration by the Committee. In a

submission dated 12 May 1999 the State party informed the

Committee that steps had been taken to ensure that the author was not

returned to the Syrian Arab Republic while his case was pending

before the Committee.

The facts as submitted by the author

2.1 The author claims that he has been a member of the Kurdistan

Democratic Party in Iraq (KDP-Iraq) (1) since 1980. As such, he

allegedly participated in various activities of that organization, chiefly

by transporting funds to support Kurds in Iraq and by distributing

pamphlets deploring the situation of the Syrian Kurds, who had been

stripped of their nationality by the Syrian State.

2.2 The author claims that he was twice arrested by the Syrian

security forces. The first time, during the Iraqi invasion of Kuwait, he

was in possession of funds intended for Iraq. He was freed after 18

days, only after a large sum of money had been paid by his family for

his release. The second arrest reportedly took place in 1993. On that

occasion, the author was held for 96 days in Mezze prison near

Damascus and was reportedly tortured. He was released only after

swearing to forgo any political activities in the future. His family

again paid approximately 6,000 United States dollars to secure his

release.

2.3 Subsequently, however, the author continued his political

activities. In March 1995 he was warned by a family member who

had reportedly received information from the security services that he

was going to be arrested once again. The author then decided to flee

the country and crossed the border into Lebanon illegally. He left

Lebanon by boat in March, but it is not clear when he arrived in

Europe. Nevertheless, on 10 April 1995 he applied for political

asylum in Switzerland, largely on the basis of his alleged persecution

in the Syrian Arab Republic.

2.4 The author's request for asylum was turned down on 28 May 1996

by the Federal Office for Refugees as being implausible, and 15

August 1996 was set as the deadline for the author's departure from

Swiss territory. Subsequently the author appealed against that

decision to the Swiss Appeal Commission on Asylum Matters,

supporting his appeal with a medical report certifying that he might

have been tortured in the past. The Appeal Commission dismissed the

appeal on 8 July 1996, declaring it inadmissible on the grounds that

the deadline for submission of an appeal had not been met.

2.5 On 8 August 1996 the author submitted a request for

reconsideration of his case (an extraordinary recourse allowing for

review of decisions that had already been executed) by the Federal

Office for Refugees. The applicant specifically requested that it

should be noted that execution of his expulsion from Switzerland

constituted a violation of the principle of non-refoulement set out in

the Convention on the Status of Refugees (art. 33), the prohibition of

torture contained in article 3 of the European Convention on Human

Rights and articles 2 and 3 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment. The

Federal Office for Refugees rejected the request for reconsideration

on 9 August 1996, maintaining that the applicant had not presented

any new facts or evidence but was merely seeking to have the facts

set out in his initial appeal considered in a different light. (The

Federal Office for Refugees also ordered the immediate execution of

the applicant's expulsion from Switzerland, on the grounds that it was

not contrary to Switzerland's legislative or treaty obligations.)

2.6 On 8 September 1996 the author appealed against the decision of

the Federal Office for Refugees. In the light of the new appeal, in

which the author sought to prove that execution of his expulsion was

wrongful under the Convention relating to the Status of Refugees and

the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment, the Swiss Appeal Commission

on Asylum Matters suspended execution of the expulsion and

authorized the author to remain in Switzerland pending the outcome

of his appeal. The Federal Office for Refugees was consulted in the

context of that appeal, and on 29 April 1997 it upheld its position that

the applicant's expulsion to the Syrian Arab Republic would place

him in physical danger. As part of the same appeal, the author's

counsel maintained his conclusions on 20 May 1997.

2.7 The appeal was considered on the merits and rejected by a

decision of the Appeals Commission dated 18 June 1998; the

Commission held that the applicant had not provided grounds for

reconsideration of his case and that he faced no real risk of torture

should he be sent back to the Syrian Arab Republic. Following that

decision the author was invited to leave Swiss territory by 15

February 1999.

Merits of the complaint

3. The author bases his complaint on the allegation that if he is sent

back to the Syrian Arab Republic by Switzerland he risks being

subjected to cruel, inhuman and degrading treatment; specifically, he

risks being tortured by the authorities. He also believes that, if sent

back, he would risk torture because he left the Syrian Arab Republic

illegally. In the author's view, it is clear that a consistent pattern of

gross, flagrant and massive violations of human rights exists in that

country which, under article 3, paragraph 2, of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, constitute circumstances that a State party must take into

account when deciding to expel someone. Consequently, the author

believes that Switzerland should not expel him, or else risk violating

the Convention.

Observations by the State party on admissibility

4.1 In its note dated 12 May 1999, the State party describes the

various stages of the process followed by the author in seeking

asylum. It specifically faults the author for not meeting the deadlines

for appealing against the decision by the Federal Office for Refugees

not to grant political asylum. The State party claims that failure to

meet the deadline for filing an appeal made it necessary for the Swiss

Appeal Commission on Asylum Matters to conduct an extraordinary

review of the case, based solely on the existing case file, in order to

determine whether the applicant faced an obvious risk of persecution

or treatment that violated human rights in his country of origin. That

review, according to the State party, was narrower in scope than the

review that the Appeal Commission would have conducted had the

appeal been filed through regular channels. Nevertheless, the State

party declares that it does not contest the admissibility of the

communication.

The author's comments on the State party's observations on

admissibility

5.1 The author addresses his comments to the observations made by

the State party on 28 June 1999. He acknowledges that the review

process focused exclusively on whether Switzerland had complied

with its international obligations and not on Swiss legislation

governing asylum. The author refers to the jurisprudence of the Swiss

Appeal Commission on Asylum Matters (JICRA 1995, No. 5), which

states that "an applicant for asylum had the right, independently of

formal questions of deadlines, to have the question of whether his or

her expulsion was executed in accordance with the principle of non-

refoulement (article 33 of the Convention relating to the Status of

Refugees) or the prohibition of torture and other inhuman treatment

(article 3 of the European Convention on Human Rights or article 3

of the Convention against Torture) considered at any time. These

principles are in fact held to be absolute, and the expiry of a

procedural deadline cannot be used to justify their violation".

5.2 Accordingly, the author declares that the decision issued by the

Swiss Appeal Commission on Asylum Matters on 18 January 1999,

from the standpoint of article 3 of the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment,

concerned the question of the risk of torture he faced if he was sent

back to the Syrian Arab Republic. This proves, in the author's view,

that the question on which the Committee was being asked to rule had

already been considered by the competent national authority.

Observations by the State party on the merits

6.1 The State party transmitted its remarks on the merits of the

communication on 13 September 1999. It reviewed the procedure

followed in the case and stated that with regard to the final decision -

that taken by the Appeal Commission on 18 January 1999 - the

Appeal Commission had conducted a review that was narrower in

scope than would have been the case had the author followed the

ordinary appeal procedures.

6.2 The State party contends that the communication contains no new

information beyond that considered when the case was dealt with

through national procedures.

6.3 Secondly, the State party points out that the author had not

provided any evidence to support several of his allegations,

particularly with regard to the statement that he had been detained in

a prison in Damascus for 96 hours for having criticized the regime

and that he had been released only after his family had paid money

and he had signed a statement renouncing politics. The author's

release was not documented. The State party also maintains that the

act of distributing anti-Government pamphlets ought to have resulted

in a heavy prison sentence. Given that the payment of money by his

family was not proved and that the author had been released after

only three months of detention, the State party believes that this can

be taken to indicate the unlikelihood of the author's alleged KDP

activities.

6.4 The State party then proceeds to review the overall human rights

situation in the Syrian Arab Republic and comment on several of the

documents submitted by the author with regard to the situation of

Kurds in that country. While giving credence to some of the

information provided, it recalls the Committee's practice, which holds

that the existence in a country of gross, flagrant or massive violations

of human rights does not in itself constitute grounds for stating that a

person risks being subjected to torture upon his or her return to that

country.

6.5 Next the State party considers the author's personal situation with

a view to confirming whether there were serious grounds for

admitting that he was likely to be subjected to human rights violations

in the Syrian Arab Republic. According to the State party, KDP-Iraq

was not an illegal organization in Iraq; moreover, it appears to have

enjoyed the support of the authorities. According to various sources,

the Syrian security forces persecuted KDP activists only if the

security of the Syrian State was threatened by their actions - for

example, activities hostile to the Syrian regime, which does not seem

to apply in the present case. The State party concludes that under

these circumstances it can be concluded that the author ran no special

risk of being subjected to treatment in violation of article 3 of the

Convention if he returned to the Syrian Arab Republic, particularly as

the alleged arrests dated back six and eight years.

6.6 The State party maintains that the documents from KARK-

Switzerland (2) and KDP-Europe submitted by the author certifying

that he was a member of KDP-Iraq cannot in themselves prove that

the author was likely to be subjected to prosecution or treatment that

contravened article 3 of the Convention if he was sent back to his

country.

6.7 According to the State party, the author never reported that he had

been subjected to torture, either during the hearings at the transit

centre or to the Federal Office for Refugees. The author's counsel

apparently reproached the authorities with failing to question the

petitioner on that specific point. The State party replies that it could

"legitimately be expected that a person who subsequently claimed he

had to leave his country for fear of being subjected again to torture

would at least mention this circumstance when questioned in the host

country about the reasons for applying for asylum".

6.8 The State party queries the fact that the author only produced a

medical certificate dated 20 August 1996 (3) stating that he could

have been subjected to torture in the past when he appeared before

the Swiss Appeal Commission on Asylum Matters and not when

filing his initial application for asylum. The State expresses surprise

that a seeker of asylum on grounds of torture waited to have his

application turned down before producing a medical certificate,

whose evidential status was, moreover, compromised by the fact that

three years had passed since the alleged facts. The State adds that,

even if one considered the author's allegation that he had been

subjected to torture in the past to be well founded, it did not follow

that he ran a foreseeable personal and present risk of being subjected

to torture again if he was returned to the Syrian Arab Republic. (4)

6.9 With regard to the author's fears of being exposed to inhuman and

degrading treatment for having left Syrian territory illegally, the State

party notes that the author's allegations that he had left the Syrian

Arab Republic under threat of reprisals by the Syrian authorities

lacked credibility. There is no evidence to back the claim that the

author's uncle had been warned of his imminent arrest. However,

evidence that the petitioner was under threat at the time of leaving his

country is, the State party notes, a prerequisite for the granting of

asylum. Moreover, the author has not furnished proof of having left

Syrian territory illegally. And even if he had, the penalty for such an

offence would be a fine or term of imprisonment, which cannot be

considered to be a breach of article 3 of the Convention.

6.10 With regard to the risks incurred by the author for having

applied for asylum in Switzerland, the State party considers that the

Syrian authorities would not subject him to inhuman or degrading

treatment solely on that account, since they are aware of the fact that

many of their nationals try in this way to obtain residency permits in

Europe. The State has no concrete evidence to the effect that asylum-

seekers returned to the Syrian Arab Republic are subjected to

treatment that violates article 3 of the Convention.

6.11 Lastly, the State party considers the author's allegation that he

would risk persecution because of his close links in Switzerland with

movements that opposed the Syrian regime. The State party notes that

the author's statements on the subject are very vague and

insubstantial, indicating that the activities in question were on a very

limited scale; otherwise, the author would have described them in

detail to the Swiss asylum authorities in his own interest.

6.12 The State party concludes that, under the circumstances and

following careful scrutiny of the case, substantial grounds do not exist

for believing that the author would be in danger of being subjected to

torture if he was returned to the Syrian Arab Republic. The State

party refers to the Committee's general comment of 21 November

1997 in support of its argument that the communication does not

contain the minimum factual basis needed to back up the author's

allegations. The State requests the Committee to find that the return

of the author to his country of origin would not constitute a violation

of Switzerland's international obligations.

The author's comments on the State party's observations

7.1 The author submitted his comments on 14 January 2000. With

regard to the lack of evidence of arrest and torture, he states that the

practical difficulties involved in gathering such evidence have been

overlooked. Any attempt to obtain such documents at present would

place his family and those connected with him in danger. He claims

not to have received any document on his release that could serve as

proof of his imprisonment.

7.2 The author draws attention to a number of reports concerning the

situation of the Kurds in the Syrian Arab Republic. In particular, he

claims that, according to the Amnesty International Report 1999,

although some Kurds arrested in 1997 were released in 1999, others

were still in prison for distributing pamphlets hostile to the regime.

7.3 With regard to the delay in making the allegation of torture, the

author claims that the Committee itself has repeatedly emphasized

that it is quite understandable for a torture victim initially to remain

silent about his sufferings. As to the certificate containing the

findings of torture, the author argues that the Committee does not, in

any case, require absolute proof of a risk of future persecution but is

satisfied with substantial grounds for fearing a violation of the

Convention. The medical report meets the criteria usually required

and was issued by an institution of the highest standing (Hôpitaux

universitaires de Genève), so that no doubt can be cast on the

conclusions of the medical examination.

7.4 With regard to his illegal departure from the Syrian Arab

Republic, the author states that he agrees with the State party's

comment about the consequences of illegal departure in most cases.

In his own case, however, given his political activities, his Kurdish

origin and the circumstances of his departure, it should be borne in

mind that his illegal departure could be used against him and lead to

assaults on his person, in contravention of article 3 of the Convention.

Issues and proceedings before the Committee

8.1 Before considering any of the allegations in a communication, the

Committee against Torture must decide whether or not the

communication is admissible under article 22 of the Convention. It

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 also that all domestic remedies

have been exhausted and that the State party has not contested the

admissibility of the communication. It therefore considers that the

communication is admissible. As both the State party and the author

have provided observations on the merits of the communication, the

Committee proceeds to consider those merits.

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

the author to the Syrian Arab Republic would violate the obligation of

the State party under article 3 of the Convention not to expel or 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.

8.3 The Committee must decide, pursuant to article 3, paragraph 1,

whether there are substantial grounds for believing that the author

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

Syrian Arab Republic. 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 her return to the country. There must

be other grounds 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 might

not be subjected to torture in his or her specific circumstances.

8.4 The Committee recalls its general comment on the

implementation of article 3, which reads: "Bearing in mind that the

State party and the Committee are obliged to assess whether there are

substantial grounds for believing that the author 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" (A/53/44, annex IX, para. 6).

8.5 The Committee expresses doubts about the credibility of the

author's presentation of the facts, since he did not invoke his

allegations of torture or the medical certificate attesting to the

possibility of his having been tortured until after his initial application

for political asylum had been rejected (paras. 6.7 and 6.8 of the

present decision).

8.6 The Committee also takes into consideration the fact that the State

party has undertaken an examination of the risks of torture faced by

the author, on the basis of all the information submitted. The

Committee considers that the author has not provided it with

sufficient evidence to enable it to consider that he is confronted with

a foreseeable, real and personal risk of being subjected to torture in

the event of expulsion to his country of origin.

9. 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, considers that the

decision of the State party to return the author to the Syrian Arab

Republic constitutes no violation of article 3 of the Convention.

Notes

1. The file contains a document dated 12 July 1995 certifying the

author's membership in KDP-Europe, based in London; the document

states that the author, whose name is misspelled, was a party member

and had "taken part in the resistance movement and in the struggle for

peace and democracy".

2. KARK appears to be a Kurdish academic and intellectual society.

The file contains the association's statutes and written testimony from

Mr. A. M., a resident of Lausanne, who on 6 March 1996 said that he

had visited the Syrian Arab Republic in July 1991 in order to collect

material on the human rights situation of the Kurds. He states that to

that end he sought the help of KDP-Iraq local offices. He was

accompanied on his travels by the author (whose name is again

misspelled), who had been introduced to him as someone who was

very active in the KDP-Iraq movement and who had therefore been

followed and arrested several times by the Syrian security services.

The author had told him that because of his membership in KDP-Iraq,

his life and the lives of his family members were in danger, and that

he could no longer remain in the country because he was constantly

being followed by the secret service.

3. The certificate was drawn up by the Hôpitaux universitaires de

Genève on 20 August 1996 at the request of the author's counsel. It is

based on two interviews with the author and sets forth the facts as

presented by him with details of the acts of torture to which he was

allegedly subjected. With regard to his physical condition, the doctors

describe it as being within the bounds of normality but mention a

number of scars on his body (a fine bow-shaped scar at the base of

the first toe of his right foot, three round scars on his left hand and

wrist, and a star-shaped scar on his left cheek). With regard to his

psychological condition, they say that the author was cooperative,

with sound temporal and spatial orientation and without major

memory disorders, but that he had trouble remembering specific dates

accurately. They note a tendency towards dissociation when scenes of

violence were mentioned. A reading of the medical report provoked

considerable nervousness and agitation. The doctors consider that the

author's description of the scenes of torture are compatible with what

is known about the treatment of opponents of the regime in Syrian

prisons, especially Mezze prison (see Amnesty International Report

1994, pp. 319-322). The scars correspond to his description of the

torture he allegedly suffered, and the lesions are probably the

sequelae of torture. Taking this and his psychological condition into

account, the doctors diagnose post-traumatic stress syndrome (PTSS),

a characteristic disorder of torture victims. The doctors go on to state

that "we therefore conclude that there has been a flagrant violation of

human rights. Under these circumstances and in view of the fact that

the Kurdish issue in Syria has not been settled, the return of [the

author] to his country would condemn him to renewed acts of

violence ...". The doctors further conclude that the PTSS is in

remission for the time being because the author feels safe in

Switzerland. His refoulement would probably lead to a return of the

symptoms, whose seriousness should not be underestimated.

Moreover, as far as treatment is concerned, the doctors state that, to

their knowledge, the type of medical care needed to stabilize the

author's condition (physiotherapy and supportive psychotherapy) do

not exist in the Syrian Arab Republic.

4. In this connection, the State party refers to the Committee's

jurisprudence,

in

particular

communications I.A.O.

v.

Sweden (65/1997) and X, Y and Z v. Sweden (61/1996), in which the

Committee, while finding that medical certificates established that the

authors had been subjected to torture, nevertheless considered that it

had not been shown that the authors would be in danger of being

subjected to torture if they were returned.