CAT/C/27/D/170/2001

A.R. (name withheld) v. Sweden, Communication No.

170/2001,

U.N. Doc. CAT/C/27/D/170/2001 (2001).

Communication No. 170/2001

Submitted by : A.R. (name withheld)[represented by counsel]

Alleged victim: The author

State party: Sweden

Date of communication: 27 April 2000

The Committee against Torture, established under Article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 23 November 2001,

Adopts the following:

1.1 The author of the communication, dated 27 April 2000, is Mr. A. R., a

citizen of Bangladesh, born on 6 September 1966, whose application for

refugee status was rejected in Sweden on 19 March 1997. He claims that his

deportation to Bangladesh would constitute a violation by Sweden of article

3 of the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment. He is represented by counsel.

1.2 The State party ratified the Convention on 8 January 1986 and made the

declaration under article 22 of the Convention at the same time.

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

Committee transmitted the communication to the State party on 4 October

2000. Pursuant to rule 108, paragraph 9, of the Committee's rules of

procedure, the State party was requested not to deport the petitioner to

Bangladesh pending the consideration of his case by the Committee. In a

submission dated 21 November 2000, the State party informed the

Committee that the petitioner would not be deported to his country of origin

while his communication was under consideration by the Committee.

The facts as presented by the petitioner

2.1 The petitioner states that since the beginning of the 80's, he was active in

the Hindu-Buddha Christian Minority Organization and in the Bangladesh

Chattra League.

2.3 During the autumn of 1992, he was attacked and abused by Muslims and

detained by the police for his participation in a demonstration where he was

allegedly tortured, hit on the soles of his feet and hanged upside down. He

was released with the help of his party and went to India for several months.

2.4 He returned later to Bangladesh and became active in the Bangladesh

Sharbohara Party (BSP). Beginning 1995, he was again detained during two

months by the police for his participation in a political rally. During this

period, he was allegedly tortured, and he submits a medical and psychiatric

report established in Denmark concerning prior injuries and post-traumatic

stress disorder.

2.5 After having spent another month in India, he returned to Bangladesh

and became responsible for BSP's public relations and publicity.

2.6 The petitioner was then allegedly advised by others members of his

party to leave Bangladesh. The party arranged and financed his flight to

Sweden in October 1995.

2.7 The petitioner arrived in Sweden on 24 October 1995 and applied for

refugee status. His application was rejected by the Swedish Migration Board

on 13 December 1995 and, on appeal, by the Aliens Appeals Board on 19

March 1997.

2.8 Subsequently, the petitioner made three new applications before the

Aliens Appeal Board under Chapter 2, Section 5 (b) of the Swedish Aliens

Act, which allows to resubmit applications before such body on the basis of

factual circumstances that have not been earlier examined by the competent

authorities. The petitioner's applications were all rejected, the latest by a

decision of 9 April 1999.

The complaint

3.1 The petitioner claims that he was subjected to torture when he was

detained in Bangladesh. He submits some medical evidence in this regard.

3.2 The petitioner claims that if he is returned to Bangladesh, he would be

again subjected to torture and that the decision forcibly to remove him to

Bangladesh would therefore entail a violation of article 3 of the Convention

by the State party.

State party's observations on the admissibility and merits

4.1 In a submission dated 21 November 2000, the State party made its

observations on the admissibility of the case.

4.2 The State party mainly draws the attention of the Committee to the

condition of the exhaustion of internal remedies and to the fact that the

decision for removal of the petitioner acquired legal force with the decision

of the Aliens Appeals Board of 19 March 1997 and, according to Chapter 8,

Section 15 of the Swedish Aliens Act, has become statute-barred after 4

years, on 19 March 2001. By the time the Committee would consider the

present communication, the removal decision would therefore no longer be

enforceable (1).

4.3 The State party thus contends that if the petitioner would still like to

obtain a residence permit in Sweden, he should makea new application to

the Swedish Migration Board, which would have to take into account all

circumstances invoked by the petitioner regardless of whether they have

already been examined (2). The decision would also be appealable to the

Aliens Appeal Board.

4.4 The State party refers in this regard to an earlier decision taken by the

Committee (J.M.U.M. v. Sweden, Communication nr. 58/1996) in which it

decided that the communication was inadmissible for failure of exhaustion

of domestic remedies because the new application that had been filed after

that the original expulsion decision had lost legal force was still pending

before the Swedish Migration Board.

4.5 The State party also considers that the communication could be declared

inadmissible as being incompatible with the provisions of the Convention, in

the sense of article 22, paragraph 2, because there is no longer any

enforceable expulsion order.

Counsel comments

5.1 In a submission dated 28 December 2000, the petitioner transmitted his

comments on the observations from the State party.

5.2 The petitioner contends that if he had made a new application for

asylum, he would have been taken into custody and the Swedish Migration

Board would have probably taken the decision to remove him to

Bangladesh, even if such a decision had been appealed. The petitioner

argues that he has indeed no chance to be granted refugee status in Sweden

because the situation in Bangladesh has not changed since the decision of 19

March 1997 of the Aliens Appeal Board and the State party's immigration

authorities would be in the same situation as they were originally. Neither

has he any chance to obtain a residence permit on humanitarian grounds for

the same reasons. Rather, he would be blamed for having hidden himself

and for not having complied with the original decision of 19 March 1997.

5.3 The petitioner considers that since the State party has not granted him

refugee status despite the existence of documents proving that he has been

tortured in the past, the only possibility for avoiding a risk of torture in

Bangladesh is a consideration of his case by the Committee.

Additional comments by State party

6.1 In a submission of 6 April 2001, the State party reiterates that since the

original decision of 19 March 1997 was no longer enforceable, the petitioner

could make a new application for residence permit, which, as of the date of

the submission, has not yet been done. Moreover, according to the State

party's legislation, the Swedish Migration Board may also take a decision,

appealable before the Aliens Appeal Board, even if the petitioner does not

make such a new application. Such a decision had also not been taken at the

time of the submission.

6.2 The State party reiterates that the communication should be declared

inadmissible for non-exhaustion of domestic remedies. In this regard, the

State party considers, that contrary to the petitioner's suggestion, such a new

application would be effective to the extent that the Swedish Migration

Board would have to take into account new circumstances as well as the one

presented before. The petitioner would thus legally be in the same position

as when he made is original application. Among the grounds on which he

could base his new application are the risks of being subjected to torture if is

returned to his native country, humanitarian grounds, his state of health, and

the links he has established with the Swedish society. In this respect, the

State party notes that the petitioner has been staying in Sweden for more

than five years and, according to available information, would have married

a Swedish citizen in 1996.

6.3 Finally, the State party underlines that a direct enforcement of the

Swedish Migration Board, without allowing reconsideration on appeal, is

possible only in cases where it is obvious that there are no grounds for

granting a residence permit. Moreover, if the petitioner has resided in

Sweden for more that three months after his first application, such a direct

enforcement, which is also appealable to the Alien Appeal Board, could

only take place in the presence of exceptional grounds, such as if the

petitioner had committed crimes in Sweden. The State party is therefore of

the opinion that a direct enforcement is unlikely in the petitioner's case.

Issues and proceedings before the Committee

7.1 The Committee considers that, in the present case, the principle of

exhaustion of internal remedies requires the petitioner to use remedies that

are directly related to the risk of torture under article 3 of the Convention.

The Committee is therefore of the opinion that the elements that are totally

unrelated to the allegations of torture, such as his situation in Sweden and

the fact that he has married with a Swedish citizen are not within the scope

of those that should be addressed in a remedy that has to be exhausted in

order to meet the requirements of article 22, paragraph 5 (b) of the

Convention.

7.2 Nevertheless, the Committee has been informed that the petitioner has

submitted a new application for residence permit on 6 June 2001, which

may be decided, inter alia, on the grounds of a risk of torture in his country

of origin. The Committee finds therefore that the author has not exhausted

domestic remedies.

8. The Committee consequently decides:

(a) That the communication is inadmissible;

(b) That this decision may be reviewed under rule 109 of the

Committee's rules of procedure upon receipt of a request by or on

behalf of the petitioner containing information to the effect that the

reasons for inadmissibility no longer apply;

(c) That this decision shall be communicated to the State party, the

petitioner and his representative.

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

original version.]

Notes

1. The State party explains that, under Swedish law, the three new

applications to the Aliens Appeal Board that were made by the author after

19 March 1997 have no incidence on the limitation period.

2. Such an application would therefore be different in nature from the one

referred to under paragraph 2.8.