Decision; Subjects: DEPORTATION, SWEDEN, AZERBAIJAN, ASYLUM SEEKERS, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
UNITED
NATIONS
CAT
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment or
Punishment
Distr.
RESTRICTED*
CAT/C/38/D/270&271/2005
2 May 2007
Original: ENGLISH
COMMITTEE AGAINST TORTURE
Thirty-eighth session
(30 April – 18 May 2007)
DECISION
Communication Nos. 270 & 271/2005
Submitted by:
E. R. K. and Y. K. (represented by counsel)
Alleged victim:
The complainants
State party:
Sweden
Date of the complaint:
19 May 2005 (270/2005) and 12 June 2005
(271/2005) {initial submission}
Date of present decision:
30 April 2007
Subject matter: Deportation with alleged risk of torture and cruel, inhuman or
degrading treatment or punishment
Procedural issue: none
Substantive issue: risk of torture, cruel, inhuman or degrading treatment or
punishment upon return
Article of the Convention: 3
[ANNEX]
* Made public by decision of the Committee against Torture.
GE.07-41546
CAT/C/38/D/270&271/2005
Page 2
ANNEX
DECISION OF THE COMMITTEE AGAINST TORTURE UNDER ARTICLE 22 OF THE
CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT
Thirty-eighth session
Concerning
Communication Nos. 270 & 271/2005
Submitted by:
E. R. K. and Y. K. (represented by counsel)
Alleged victim:
The complainants
State party:
Sweden
Date of the complaint:
19 May 2005 (270/2005) and 12 June 2005
(271/2005) {initial submission}
The Committee against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 30 April 2007,
Having concluded its consideration of complaint Nos. 270 & 271/2005, submitted to
the Committee against Torture on behalf of E. R. K. and Y. K. 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 complainants are Messrs. Y. K. (Communication no 270/2005)1, and E. R. K.
(Communication no. 271/2005), who are brothers and Azerbaijani nationals. They claim to be
victims of violations of article 3 by Sweden of the Convention against Torture and Other
1 The original communication no. 270/2005 related to two complainants, Y. K. and his
brother E. N. K. On 15 May 2006, in light of the fact that E. N. K. received a permanent
residence permit on humanitarian grounds in Sweden on 20 December 2005, the part of the
complaint relating to him was withdrawn by the complainants from communication no.
270/2005 and subsequently discontinued by the Committee against Torture during the 36th
session. Thus, the only complainant remaining from communication 270/2005 is Y. K.
However, as the complaints of the other two brothers (Y. K. and E. R. K.) depend on the facts
of their brother E. N. K.’s case, the facts of E. N. K.’s case, the State party’s submission and
the complainants’ comments relating to E. N. K.’s case are included in this decision.
CAT/C/38/D/270&271/2005
Page 3
Cruel, Inhuman or Degrading Treatment or Punishment. The complainants are represented by
counsel.
1.2 On 13 and 29 June 2005, respectively, the Rapporteur for new complaints and interim
measures requested the State party not to deport Y. K. and E. R. K. to Azerbaijan while their
cases are under consideration by the Committee, in accordance with rule 108, paragraph 1, of
the Committee’s rules of procedures. On 16 November 2005 and16 March 2006, the State
party acceded to the Committee’s request.
1.3 On 30 April 2007, during the 38th session of the Committee against Torture, the
Committee decided to join the consideration of these two communications.
The facts as presented by the complainants
2.1 Y. K. was a student at the Azerbaijan State Marine Academy in 1999. His brother E. R.
K., who is a painter, graduated from the Azerbaijan State University of Culture and Art on 28
June 1994. From 1992 to 2002, he worked as a teacher at the Gymnasium of Art in Baku.
Neither of the brothers was ever engaged in any political activity. However, their brother, E.
N. K. (a third brother), had been an active member of the Azerbaijan Democratic Party (ADP)
since 12 February 1999 and in December 2001, due to his political activities was forced to
leave Azerbaijan. The complainants’ case is based on their brother E. N. K.’s activities. The
primary political aim of the ADP is to establish a democratic rule of law in Azerbaijan, and
the party works actively for human rights and freedoms. E. N. K.’s role in the party included
the preparation, planning and carrying out of rallies and demonstrations and he was directly
associated with the ideological section of the ADP’s local divisions in Khatai and Nasimi
districts. As an artist, he was responsible for creating slogans and posters. During
demonstrations, he was responsible for handing out political material to the participants.
2.2 On 8 September 2001, E. N. K. was brutally assaulted by two policemen during a
demonstration. Due to the confusion created by the crowd, he managed to escape and was
taken to hospital, where they found that he had a fracture to his left hand. The police later
came to the hospital to interrogate him about the ADP, and ordered him to come to the police
station upon release. On 27 October 2001, as E. N. K. had not turned up at the police station,
he was arrested at his home. After a body search, he was confined in a “cramped cell” for 9 to
11 hours, after which he was brutally assaulted by two policemen. He was thrown to the floor
and severely beaten to the point of unconsciousness on several occasions. Twenty four hours
later, he was interrogated about his activities in the ADP. Subsequently, he was released with
a warning that he would be interrogated again soon. On 6 December 2001, the police came to
his house with an arrest warrant and a search warrant, but E. N. K. had gone into hiding.
They searched the house in which they discovered political documents and brutally
“mistreated” his wife.
2.3 On 25 December 2001, E. N. K. and his wife and daughter illegally left Azerbaijan. On
2 January 2002, they arrived in Sweden and applied for asylum. While in Sweden, E. N. K.
received a “verdict”, sentencing him in absentia to 5 years imprisonment for complicity in a
coup d’état 2. On 16 June 2004, the Migration Board rejected his request for asylum, on the
2 A copy is provided by the complainants in their comments on the State party’s submission.
As set out in paragraph 5.7 below, the complainants admit that there was an error in
translation and that this was not a judgement/verdict but a warrant for arrest.
CAT/C/38/D/270&271/2005
Page 4
basis of a report from the Swedish Embassy in Ankara, which demonstrated that the
documents submitted by the complainants to support his claims were false. On 12 April 2005,
the Alien’s Appeal’s Board rejected his appeal.
2.4 From January 2002 and as a result of E. N. K.’s departure, Y. K. and E. R. K. started
receiving phone calls from the police, usually late at night, requesting information on their
brother’s whereabouts, and receiving repeated threats that they and his families would be
detained if they failed to indicate where he was. In June 2002, Y. K. was summoned by the
police. Upon his appearance at the police station he was interrogated and threatened by two
policemen. When he refused to provide any information on his brother, one of the policemen
beat him to the point of unconsciousness. Both policemen continued beating him when he
came round. He was subsequently released and told that it was “only an initial warning”.
2.5 On 3 August 2002, at 2:00 am, four armed policemen called at the K.’s apartment. E. R.
K. and his father were beaten and Y. K. was hit in his stomach with a baton and lost
consciousness. E. R. K.’s 7-year-old son was pushed to the ground when he started to cry and
his wife was locked in a room. The complainants’ mother managed to escape and called for
help in the street. At this point, the policemen left and the family called an ambulance and
received medical assistance.
2.6
Following this incident, Y. K. and E. R. K. moved in with their aunt for three months,
after which they returned to their old apartment. On 12 and 13 December 2002, they were
both summoned by the police. On 13 December 2002, both brothers illegally left Azerbaijan
and fled to Iran by car. On 27 December 2002, they arrived in Sweden and applied for
asylum. On 16 June 2004, the Migration Board rejected both their applications on the basis of
the report from the Swedish Embassy in Ankara. Following an investigation into the political
activities of the complainants’ brother (E. N. K.) and the authenticity of certain documents,
the report concluded that the complainants had submitted false documents and that their
brother had never been politically active. On 31 January 2005 and 8 April 2005, respectively,
the Aliens Appeal Board rejected Y. K.’s and E. R. K.’s appeal stating that it shared the
Migration Board’s views.
2.7 The complainants assert that the Swedish Embassy’s report, upon which the domestic
authorities refused to grant the complainants asylum, was based on anonymous sources and
precludes the possibility of challenging the information it contains. The information therein
comes from sources within Azerbaijan and could thus be manipulated by state authorities.
The complainants conclude that the Swedish immigration authorities never assessed their
cases objectively. They submit that there continues to be a consistent pattern of gross,
flagrant and mass violations of human rights in Azerbaijan and provide reports to
demonstrate such violations, including extrajudicial and summary executions, disappearances
and torture, in particular against political and religious opponents. According to the
complainants, these documents confirm that opposition leaders (from the ADP) have been
detained and tortured, as the Azeri regime is said to oppress those who criticize it.
The complaint
3.
According to the complainants, their deportation from Sweden to Azerbaijan would
constitute a violation of article 3 of the Convention against Torture, as they risk being
detained, questioned, and tortured in relation to their brother’s activities and on the basis of
CAT/C/38/D/270&271/2005
Page 5
which they were previously ill- treated themselves3. As the complainants are related to
someone that has perpetrated serious political crimes, they claim that they will be treated
accordingly, as enemies of the State.
State party’s observations on the admissibility and the merits
4.1
On 16 November 2005 and 16 March 2006, the State party provided its submissions on
the admissibility and the merits of both complaints. It submits that they are both inadmissible
as manifestly ill-founded, and sets out the relevant provisions of the Aliens Act, pointing out
that several provisions reflect the same principle as that laid down in article 3, paragraph 1, of
the Convention. 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 has been issued. 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.
4.2 Furthermore, a residence permit may be granted if it is of urgent humanitarian interest
for some other reason. When assessing the humanitarian aspects, particular account shall be
taken of whether the alien has been in Sweden for a long time and if, on account of the
situation in the receiving country, the use of coercive measures would not be considered
possible when enforcing the refusal-of-entry or expulsion order. Further special
considerations shall be given to a child's social situation, his or her period of residence in and
ties to the State party, and the risk of causing harm to the child's health and development. It
must also be considered whether the alien committed crimes and a residence permit may be
refused for security reasons. Decisions made by the Migration Board under Chapter 2,
Section 5 b, as amended, are not subject to appeal.
4.3 The Migration Board decided on its own accord to examine whether E. R. K. 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 3 March 2006, it found that
he should not be granted such a permit as the circumstances of his case could not be
considered to involve an urgent humanitarian interest and he had not developed such ties to
Sweden to warrant granting of a permit.
4.4 On the merits and as to the general situation of human right in Azerbaijan, the State
party submits that Azerbaijan has been a party to the Convention against Torture since 1996
and has made a declaration under article 22 to deal with communications. It has also been a
party to the Council of Europe (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. However, the State party admits that although
3 No medical evidence has been provided to demonstrate that they were previously ill-treated.
CAT/C/38/D/270&271/2005
Page 6
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 complainants would entail
a violation of article 3.
4.5 The State party explains that following a request by the Migration Board, the Swedish
Embassy in Ankara consulted legal and other expertise to obtain an opinion concerning the
political activities of E. N. K. and the authenticity of the documents invoked by the
complaints before the Board. When deemed necessary, checks with relevant public
Azerbaijani registers were carried out, without disclosing the identity of the complainants to
the Azerbaijani authorities. The documents provided by E. N. K. on which the Embassy was
consulted, included a police summons, the alleged “judgement” by the Court of the Khatai
district of Baku of 15 April 2003, a reference letter allegedly issued by the ADP and a
medical certificate. The results of the investigation have been accounted for in a report from
the Embassy dated 16 February 2004. The report states that there are no indications that any
criminal case or other criminal proceedings have been instituted against E. N. K. It submits
that, according to these investigations, all the examined documents are false.
4.6 On the police summons, the place of residence of the concerned person is 20/40,
Azadlig Av., Baku. However, E. N. K. has never resided at that address. His place of
registration is 21/25, Ganja Av. Baku. Moreover, it refers to article 181 of the former
Criminal Code of the Soviet Azerbaijan. According to the new criminal code, a person who
does not adhere to a police summons will be escorted to the police department by police
officers from the relevant police station and would not, as indicated in the summons in
question, be punished according to article 181 of the former Criminal Code. Further, this
summons was issued by the police department of the Nasimi district of Baku and endorsed by
a stamp with no. 66, a number which does not correspond to that police department.
4.7 As to the alleged judgement convicting E. N. K. in absentia for complicity in a coup
d’état and sentencing him to five years imprisonment, the State party submits that, this
document is not described as a judgement but a warrant. The Court of the Khatai district has
never instituted or held any court proceedings against E. N. K.. The Judge R. Aliyev, who is
alleged to have signed the warrant, is not listed among the serving judges of the Court of the
Khatia, and the design and content of the warrant is not in conformity with current legal
procedures. As to the reference letter, dated 21 November 2001, allegedly issued by
representatives of the ADP, E. N. K. is not listed among the members of the party and the
letter has not been registered in the ADP office. The letter was stamped by the Nasimi branch
of the ADP but signed by the alleged chairman, Mr. S. Jalaloghlu. According to the State
party, Mr. Guliyey, who is the Chairman, signs all official letters for that party.
4.8 As to the medical certificate invoked by E. N. K., it would appear that he did not
undergo any medical treatment in the traumathology and orthopaedic hospital under the
Ministry of Health on the dates mentioned in the certificate. It is signed by a Mr. Gafarov,
referred to in the certificate as head of a division within the hospital, and a Mr. Salimov,
referred to as a physician at the hospital. However, neither of these people was listed among
the managers and physicians serving at the hospital before or after the date of issuance of the
certificate. Finally, the certificate states that a political manifestation was planned on 8
CAT/C/38/D/270&271/2005
Page 7
September 2001 near the “28 May” underground station, but according to the Report, no such
manifestation took place.
4.9
The same Embassy Report of 16 February 2004 highlighted the results of an
investigation into documents submitted specifically with respect to Y. K.’s case. As to the
police summons, the report states that there are no indications that any criminal case or other
criminal proceedings have been instituted against Y. K. The documents contain formal and
other errors and deviations in comparison with authentic police summons issued by the
Azerbaijani police authorities. According to applicable rules and regulations, police summons
have to be endorsed by a special stamp belonging to the police department of the Khatai
district. Such a stamp is only used by the head of the police department who signs a
document. In this case, information concerning full name, rank and position of the person
who signed the document is missing. It is stated in the document that the summoned person
should report to investigator Jabarov S. But no further details are provided.
4.10 The same report of 16 February 2004, highlighted the results of an investigation into
documents submitted specifically with respect to E. R. K.’s case, which included a letter
stating that he would be reported to a court and a summons, both were alleged to have
emanated from the police department of the Khatai district. According to the report, the letter
of 13 December 2002 is not registered at the police department in the Khatai district and has
an unknown reference number. It appears to be a kind of summons but a letter-head
belonging to a police agency is not used on summons and they are not sent in envelopes. The
police investigator who is alleged to have signed the letter, Mr. Jafarov, did not serve at the
police department of the Khatai district in 2002. As to the alleged police summons, the report
states that the rank and position of the officer who signed the document should be, but is not,
indicated on the summons. According to the summons, if the complainant does not comply
with it he shall be punished under Article 298 of the Criminal Code. However, this article
actually refers to the punishment imposed in the event that a person refuses to testify in
criminal proceedings. The police investigator who is alleged to have signed the letter, Mr.
Jafarov, did not serve at the police department of the Khatai district at the time the summons
was issued. There is also an incorrect stamp marked on the summons.
4.11 The complainants raised objections to the findings of the Embassy Report on several
grounds upon which the Swedish Embassy in Ankara was requested to comment. In a further
report of 16 June 2005, the Embassy explained that it normally uses external expertise and
that the persons chosen are independent of the authorities and political parties in Azerbaijan.
It shares the view of the Government that the identities of the persons are not disclosed to the
Azerbaijani authorities or otherwise to the public to prevent them from being the subject of
threats or physical abuse. The Embassy exercises great caution in selecting suitable persons
to assist it, and due to security concerns and the future possibilities of obtaining expert advice
in similar cases, it refrains from disclosing the identity of the sources used in this matter. As
to the documents invoked, the Embassy had already conducted a thorough examination and
concluded that they were false.
4.12 The Embassy’s Report also underlined the contradictory information concerning E. N.
K.’s membership and political activities within the ADP. When the Embassy conducted the
initial investigation in April 2004, there were no indications that E. N. K. was a member of
the ADP. In February 2005, in a meeting in Baku between representatives of the Embassy
and Mr. A. Shahbazov, the Secretary General of the ADP, the latter stated that E. N. K. was
CAT/C/38/D/270&271/2005
Page 8
an ordinary member of the ADP but without any specific responsibilities or tasks. He could
not explain why E. N. K. had not been registered as a member in April 2004. Moreover, the
ADP is an officially registered and legal political organisation in Azerbaijan. It is not a
criminal offence to be a member of it and there is no systematic persecution of members of
the political opposition in Azerbaijan. In a complementary report from the Swedish Embassy
of 1 July 2005, it pointed out that it is well known that the members of the ADP have been
issuing false documents for which some people have been dismissed, including
representatives of the Narinamov branch to which E. N. K. had belonged.
4.13 The State party also refers to a report of the UNHCR of September 2003, in which it
was stated that mere membership of an oppositional political party would not suffice to
substantiate a claim to refugee status. However, in certain cases, being an outspoken activist,
writing critical articles in opposition newspapers, leading unauthorised demonstrations or
“provocative actions” can result in a harsh response from the authorities, including arrest,
detention and unfair trial.
4.14 The State party refers to contradictory information provided by all of the complainants.
E. N. K. told the Migration Board on 7 August 2003, that he had worked as a painter within
the ADP, producing posters and showcases, which he had distributed during the political
events such as demonstrations4. According to the documents submitted to the Aliens Appeal
Board on 19 August 2004, E. N. K. had been responsible for ideological issues within the
party and had been elected secretary for the ideological departments in the Khatai and Nasimi
districts. Before the Committee, however, E. N. K. claimed that he had been directly
associated with the ideological section of the ADP’s local divisions in Khatai and Nasimi
districts. Y. K. stated to the Committee that he had been summoned by the Azerbaijani police
in June 2002 and that upon reporting to them he was physically abused. He also stated that he
had received threatening phone calls daily from the police in January and February 2002.
None of this information had been provided to the domestic authorities and in the interview
with the Migration Board, he stated that he had never been arrested.
4.15 The State party submits that should the Committee consider that E. N. K. was a
member of the ADP, it contends that his activities and level of responsibilities within the
party were not of such a magnitude that he could be considered a prominent person. His
alleged activities took place mainly during 1999 and 2001, and must be viewed in light of
recent presidential pardons. He has not even submitted a copy of the alleged judgement
sentencing him to prison for political activities to the Committee. According to the State
party, the advancement of false documents by all of the complainants calls into question their
credibility. In its view, none of the complainants have substantiated their claims that there are
substantial grounds for believing that they would be at personal risk of being tortured if
returned to Azerbaijan.
Complainant’s comments on the State party’s observations on the admissibility and the
merits
5.1
On 15 May 2006, the complainants responded to the State party’s submission. They
state that the Migration Board only had one interview with them lasting for only one hour and
fifteen minutes with respect to Y. K. and two hours and thirty minutes with respect to E. R. K.
4 It would appear that both E. N. K. and E. R. K. are painters.
CAT/C/38/D/270&271/2005
Page 9
This is considered insufficient time to conduct a thorough and satisfactory investigation of
the complainants’ reasons for applying for asylum, particularly bearing in mind that the
Aliens Appeal Board relies on the same information. Because these interviews were held in
question and answer mode, and while recognising that they had an opportunity to make
comments upon the minutes subsequent to their interviews, the complainants claim that they
were unable to give a thorough and complete description regarding the events preceding their
flight from Azerbaijan.
5.2 The complainants deny the State party’s claim that the Migration Board and the Aliens
Appeal Board applied the same kind of test as the Committee in considering these complaints.
According to the complainants this is clear from the importance attached to the report from
the Swedish Embassy in Ankara. The evidence presented by the complainants against these
conclusions has not been commented upon in the State party’s examination. Although both
brothers rely on E. N. K.’s case to demonstrate a real and personal risk to them, their cases
are not limited to the facts of his case. The fact that they were harassed, threatened, and
physically abused and detained (in the case of Y. K. only) confirms that risk. The
complainants note that the State party agrees that the human rights situation in Azerbaijan
raises legitimate concerns.
5.3 As to the Embassy report, the complainants submit that making such inquiries of
Embassies often involve substantial risk to reveal the identity of the asylum applicant, thus
creating a risk to him/her and their families and refers in this regard to an advisory opinion on
this issue from UNHCR5. In the complainants’ view, the State party’s claim that enquiries
were made without disclosing their identities or the identity of their brother E. N. K. is
unreasonable. In order to obtain the acquired information a person must specify to the
authorities concerned which person he wishes to have information regarding. It is also
reasonable to assume that the person or persons who conduct these investigations are well
known to the Azerbaijani authorities.
5.4 The complainants deny that they falsified any documents and submit that they lack the
means and necessary legal expertise to make any comments upon what is asserted in the
Embassy’s report. However, they do submit that the objections regarding the documents are
exclusively related to alleged formal errors. For example, the design of a warrant was said not
to match current procedures but no details on a correct design were provided. Also, the
domestic authorities chose to believe an anonymous source rather than the complainant’s
evidence that a demonstration had taken place on 8 September 2001. In addition, the
complainants submit that they are not in a position to comment on the qualifications of those
who undertook the investigation.
5.5 The complainants submit that the State party left out relevant information in its account
of the Embassy Report of 16 June 2005. Mr. Shahbazov, two weeks after the meeting with
the migration attaché in February 2005 (see para. 4.12), wrote an official letter in which he
stated that E. N. K. was an active member of the party and is wanted by the police department
in Azerbaijan and that he risks persecution and arrest upon return. This letter was submitted
to the Aliens Appeal Board. The Embassy should have considered the fact that the APD has
over 40,000 members and thus it would be unreasonable to expect the party’s leadership to
have specific knowledge concerning individual members, even prominent members. Neither
5 UNHCR Advisory Opinion, Case number 1061/04, Dated 24 September 2004.
CAT/C/38/D/270&271/2005
Page 10
did it take into account the fact that several prominent members who were active during the
same time as E. N. K. and who knew him had fled the country themselves or had been
arrested and were not released until 2005.
5.6 As to the State party’s claim that contradictory information was provided on E. N. K.’s
political activities, the complainants provide detailed information on the efforts made by the
complainants to obtain written evidence in this regard. Their efforts culminated in the receipt
of a letter dated 23 March 2006, from Sardar Calaloglu, a “front figure” of the ADP, and
Hasret Rustamov, first deputy administrator, which asserted inter alia that E. N. K. had been
a member since February 1999, had participated in legal and illegal manifestations, including
one on 8 September 2001, and had been exposed to physical violence. According to the
complainants, this information is also confirmed by a statement in a letter of 24 March 2006
from the NGO “Democracy, Human Rights and Media Monitor”.
5.7 The complainants confirm the legality of the ADP and question the relevance of the
State party’s assertion of the alleged absence of systematic persecution of members of the
political opposition. They deny that they provided contradictory information, but merely
added to and provided more detail at each stage in the proceedings. As to the claim that the
complainants should have had a clearer picture of E. N. K.’s political activities, the
complainants submit that E. N. K. didn’t wish to involve his relatives in such dangerous
activities. As to the judgement against E. N. K., the complainants confirm the State party’s
information that this document was in fact a warrant for arrest rather than a judgement. They
submit that due to a translation error it was incorrectly referred to as a “verdict” or judgement
rather than a warrant.
Issues and proceedings before the Committee
Consideration of admissibility
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. 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 be exhausted.
6.2
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
7.1
The issue before the Committee is whether the removal of the complainants to
Azerbaijan would violate the State party's obligation 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.
7.2 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
CAT/C/38/D/270&271/2005
Page 11
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.
7.3 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.
7.4 The complainants’ claim that there is a risk that they will be tortured if returned to
Azerbaijan, due to their brother’s alleged previous political activities on the basis of which
they claim to have been previously mistreated by the Azerbaijani authorities. The Committee
notes that the complainants have failed to adduce any evidence medical or otherwise that they
were subjected to ill-treatment themselves in Azerbaijan. It also notes that the State party has
provided extensive reasons, based on expert evidence obtained by its Embassy in Ankara, on
why it questioned the authenticity of each document provided by the complainants to support
their own claims and those of their brother, E. N. K.
7.5 The Committee observes that in their comments to the State party’s submission, the
complainants now claim that the document which they had purported to be a judgement,
sentencing the complainants’ brother E. N. K. in abstensia to five years imprisonment, is in
fact a warrant for arrest (see para. 5.7). The complainants challenge the decision to request
information of the Embassy in Ankara, which they claim risked revealing their identities to
the Azerbaijani authorities. The Committee notes that the State party denies that the
complainants were identified, but in any event considers the means by which the State party
conducted its investigations irrelevant for the purposes of establishing whether the
complainants would be subjected to torture upon return to Azerbaijan. Having presented the
State party with documents which were alleged to corroborate the complainants’ claims, it
was up to the State party to attempt to establish the authenticity of those documents. The
Committee also notes that the only other arguments made by the complainants with respect to
the information in the Embassy’s report, were that the discrepancies in the documents were
merely “alleged formal errors” and that they lack the means and necessary legal expertise to
make any further comments. The Committee considers that the complainants have failed to
disprove the State party's findings in this regard, and to validate the authenticity of any of the
CAT/C/38/D/270&271/2005
Page 12
documents in question. It recalls its jurisprudence that it is for the complainants to collect and
present evidence in support of his or her account of events6.
8.
For the abovementioned reasons, the Committee concludes that the complainants have
failed to substantiate their claim that they would face a foreseeable, real and personal risk of
being subjected to torture upon his return to Azerbaijan.
9.
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 complainants 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.]
-----
.
6 See Mehdi Zare v Sweden, Communication No. 256/2004, Views of 17 May 2006, para. 9.5;
M.A.K. v Germany, Communication No. 214/2002, Views of 14 May 2004, para. 13.5; S.L.
v. Sweden, Communication No. 150/1999, Views of 11 May 2001, para. 6.4.