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CAT/C/56/D/523/2012

Mr. X v. Finland

UNO-Ausschuss gegen Folter (CAT) · 2015-11-23 · en UN

Decision; Subjects: FINLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.16-01998(E)

*1601998*

Committee against Torture

Communication No. 523/2012

Decision adopted by the Committee at its fifty-sixth session

(9 November-9 December 2015)

Submitted by:

Mr. X (represented by the Refugee Advice

Centre)

Alleged victim:

The complainant

State party:

Finland

Date of complaint:

24 October 2012 (initial submission)

Date of present decision:

23 November 2015

Subject matter:

Expulsion to Angola

Procedural issues:

Exhaustion of domestic remedies, non-

substantiation of the claim

Substantive issue:

Risk of torture upon return to the country

of origin

Article of the Convention:

3

United Nations

CAT/C/56/D/523/2012

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

12 February 2016

Original: English

CAT/C/56/D/523/2012

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 (fifty-sixth session)

concerning

Communication No. 523/2012*

Submitted by:

Mr. X (represented by the Refugee Advice

Centre)

Alleged victim:

The complainant

State party:

Finland

Date of complaint:

24 October 2012 (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 23 November 2015,

Having concluded its consideration of complaint No. 523/2012, submitted to it by

Mr. X, under article 22 of the Convention,

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 (7) of the Convention

1.1

The complainant of the communication is Mr. X, a national of Angola, born in 1979.

His request for asylum in Finland was rejected and he risks forcible removal to Angola. The

complainant claims that his deportation would violate his rights under article 3 of the

Convention. The complainant is represented by counsel from the Refugee Advice Centre.

1.2

On 25 October 2012, acting under rule 114, paragraph 1, of its rules of procedure,

the Committee requested the State party to refrain from expelling the complainant to

Angola while his complaint was under consideration by the Committee. On 20 December

2012 the State party agreed to refrain temporarily from deporting the complainant.

Facts as presented by the complainant

2.1

The complainant submits that he was born in Cabinda and belongs to the Baluba

tribe. He does not know his father, his mother was a social worker in an aid organization in

Cabinda. In 1982, when the complainant was three years old, government soldiers shot his

mother. After that his grandmother escaped from Cabinda to Lobito with him. The

* The following members of the Committee participated in the consideration of the present

communication: Essadia Belmir, Alessio Bruni, Satyabhoosun Gupt Domah, Abdoulaye Gaye,

Claudio Grossman, Jens Modvig, Sapana Pradhan-Malla, George Tugushi and Kening Zhang.

CAT/C/56/D/523/2012

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grandmother died in 1994. The complainant made a living selling goods and washing cars

in Lobito.

2.2

The complainant submits that in 2000, he joined the Front for the Liberation of the

Enclave of Cabinda (Frente de Libertação do Enclave de Cabinda). He was an active

member of the Front for four years before fleeing from Angola. He was working in a group

of 10 persons in Lobito. They met in members’ houses once a week and collected money

each month from each member. With that money, they bought medication, wood and other

goods, which they sent to fighters belonging to the Front in Cabinda. They also collected

information about government troops and military planes in the Cabinda area. Three

members of the group were recruited to fight in Cabinda and later died in fighting.

2.3

The complainant further submits that on an unspecified date, government soldiers

arrested him in the street as he was going to a meeting of the Front. They found a

recruitment pamphlet for the Front in his possession. He was brutally beaten with rifle butts

and his neck stamped on with boots and was then brought to a prison in Lobito. The

conditions in the prison were inhuman. He was kept for about a month in solitary

confinement with minimal food and without any care for his injuries. In addition, he was

kept awake. He expected that he would die while in detention. After a while, he was

allowed to take a brief walk outside. He promised a prison guard to give him a bribe to let

him escape and the guard agreed.1 On an unspecified date the complainant escaped from

prison and fled to Luanda. Soon after, he fled from Angola with the assistance of a

“dealer”. He arrived in Finland on 14 September 2009 and applied for asylum the same day.

2.4

The complainant submits that, according to medical certificates issued by Dr. Kaarin

Sorvari of the Centre for Torture Survivors on 12 October 2010 and 6 June 2011, he is

suffering from post-traumatic stress disorder, resulting from torture and traumatizing

experiences, serious depression, “neck and head syndrome” and heart problems. The

complainant has lost weight, he sleeps poorly and has thoughts of suicide. He submits that

he needs intensive mental health and medical care and that he does not have the possibility

of getting proper health care in Angola. Furthermore, he has provided a medical certificate

dated 12 October 2011, which states that his health deteriorated during the asylum

proceedings, the trauma symptoms worsened and his depression became even worse. As a

result of serious stress, the complainant also started experiencing heart problems.

2.5

The complainant applied for asylum in Finland on 14 September 2009. The

Directorate of Immigration rejected his application on 11 October 2010 and the Helsinki

Administrative Court rejected an appeal against this decision on 16 September 2011. On 27

September 2011, the complainant applied for leave to appeal to the Supreme Administrative

Court and made a request to stop his deportation. On 19 October 2011, the Supreme

Administrative Court postponed the deportation pending its review of the case, but on 12

October 2012 it rejected his request for leave to appeal and the deportation order became

executable.2 The complainant contends that he can be deported at any moment.

1 The complainant claims that he paid the bribe to the prison guard later, in his home, where he had

money.

2 The complainant submits that, according to section 196 of the Finnish Aliens Act (301/2004), a

decision of the Administrative Court can be appealed to the Supreme Administrative Court only if the

Supreme Administrative Court grants a leave to appeal. According to section 200 of the Act, applying

for leave to appeal to the Supreme Administrative Court does not prevent the enforcement of a

decision, unless otherwise ordered by the Supreme Administrative Court. After the decision by the

Supreme Administrative Court there is no other domestic remedy available and the deportation order

becomes executable immediately.

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The complaint

3.1

The complainant submits that his deportation would violate his rights under article 3

of the Convention. The complainant submits numerous references to reports, testifying to

the existence of gross, flagrant and mass violations of human rights in Angola to justify his

fear of torture if he is forcibly returned to Angola.3

3.2

The complainant submits that his application for asylum has been rejected because

the Finnish Immigration Service and the Helsinki Administrative Court found that he was

not able to give cohesive answers to all the questions they asked. He submits however, that

certain inconsistencies are inherent to traumatized victims of torture. The Finnish

Immigration Service has also stated that the complainant has given contradictory

information about his tribe, the languages he speaks and travel routes to Finland. The

complainant, however, challenges that assessment and claims that certain contradictions

were owing to translation errors. Further, the Helsinki Administrative Court justified its

decision by stating that activities of the Front could not take place in parts of Angola other

than the Cabinda area. The Court also made reference to an “AB language analysis

statement” of 27 January 2010, which states that the appellant speaks a form of Portuguese

which is clearly from Angola and mostly from the Lobito region. However, the complainant

submits that the said language analysis statement also notes that that Cabinda origin is not

excluded on the grounds of a person speaking basic Portuguese. The complainant maintains

that throughout the procedure he made coherent statements and provided supporting

medical evidence of past torture and serious harm. His statements were plausible and did

not run counter to known fact. The country of origin information concerning the human

rights situation in Angola supported his statements.

3.3

The complainant maintains that the State party authorities never carried out a

comprehensive investigation of his need for protection. He made a request for an oral

hearing to the Helsinki Administrative Court, but the Court ruled, without further

arguments, that an oral hearing would be manifestly unfounded. He maintains that the risk

of being persecuted and tortured in Angola for him is both personal and present. His past

activities are known to the authorities, he has been arrested and tortured in the past and he

is a traumatized torture victim.

State party’s observations on admissibility and the merits

4.1

By note verbale of 25 April 2013, the State party submitted its observations on the

admissibility and the merits. It recalls the facts of the case and also provides excerpts from

relevant domestic legislation. The Aliens Act of the State party provides for protection for

the applicant if there is a “real risk of being subjected to serious harm.”4 The law further

defines “serious harm” as the death penalty or execution; torture or other inhuman or

degrading treatment or punishment; serious and individual threat as a result of

indiscriminate violence in situations of international or internal armed conflicts.

4.2

The State party further submits that such protection from removal from the country

is offered if the authorities of the State party are “convinced of the veracity of the

application”5 with regard to the applicant’s need for international protection. The authorities

3 The complainant makes references to different reports issued by the Office of the United Nations

High Commissioner for Refugees (it is not clear which specific report is meant here); Amnesty

International annual report, 2010; the United States of America Department of State country reports

on human rights practices in Angola of 2009 and 2011; and Human Rights Watch report “Angola: end

case against Cabinda rights defenders” (2010).

4 Section 88, para. 1, of the Aliens Act, 301/2004.

5 Section 98, para. 2, of the Aliens Act, 323/2009.

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make such a finding by taking into account the applicant’s statements and “real time

information of the circumstances … obtained from various sources”.6 The applicants are

issued a continuous residence permit, if refusing one would be “manifestly unreasonable

with regard their health, ties to Finland or on other compassionate grounds, particularly in

consideration of the circumstances they would face in their home country or of their

vulnerable position”.7

4.3

The State party submits that the Immigration Service took into account the human

rights situation in Angola when deciding on the case. The human rights situation has

improved since the peace treaty signed in 2002, after 27 years of civil war. Small conflicts

that still exist, “do not pose a threat to civilians”. The humanitarian situation in Angola also

shows improvement.

4.4

The complainant’s role in the Front for the Liberation of the Enclave of Cabinda,

has been assessed as “minor”. According to the assessment, the complainant does not have

a particular profile as a “political actor”. The arrest that the complainant has reported

appears to be coincidental. The Immigration Service has stated that it appears unlikely that

the authorities in Angola would be interested in him or that he would be in danger of being

arrested again. The sources available to the Immigration Service, do not mention any Front

activity outside the Cabinda area. Overall, the complainant’s description of the facts was

“vague” and “unspecified”.

4.5

The State party submits that in regard to the medical statement provided by the

complainant, while the scars are compatible with his story, the statement does not show that

the assault was owing to the political activity of the complainant. Mr. X has provided

conflicting information regarding his tribe, the languages that he speaks and his travel

arrangements before leaving Angola. That conflicting information weakens the credibility

of the application.

4.6

In regard to the proceedings before the Administrative Court, the State party submits

that the Court also rejected the complainant’s arguments. The Court held that despite a

“partly unsatisfactory” safety and human rights situation, Angola could not be considered

so unsafe that the complainant could not return there.

4.7

The State party further submits that the medical certificates dated 6 June 2011,

12 October 2010 and 19 October 2012 were submitted to the Committee, but were not

provided to the Immigration Service during the asylum proceedings. In addition, the

medical certificate of 19 October 2012 was not provided to the Immigration Service, the

Administrative Court or the Supreme Administrative Court. Those medical certificates

show that the complainant suffers from “mild mental health problems”. The State party

submits however that psychiatric treatment is available in Angola and that this should not

be a reason to grant a residency permit to the complainant.

4.8

The State party submits that on 1 November 2012, the complainant applied for a

new application for international protection in Finland, based, inter alia, on the medical

certificate dated 19 October 2012. The State party therefore requests that the case be

considered only after the final decision of the national authorities has been issued.

6 Ibid., para. 3.

7 Section 52, para. 1, of the Aliens Act, 323/2009.

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Complainant’s comments on the State party’s observations on admissibility and the

merits

5.1

In reply to the State party’s observations, on 18 June 2013, the complainant

submitted that his new application for asylum had been rejected by the Immigration Service

on 30 January 2013. On 31 December 2013, the Helsinki Administrative Court further

rejected the complainant’s appeal, stating that he could not be considered to be in

vulnerable position and no new grounds were provided to reconsider the outcome. The

complainant, through his counsel, filed leave to appeal to the Supreme Administrative

Court.8

5.2

The complainant submits that the new medical information that was provided by

him, dated 26 May 2013 and 1 December 2013, showed that he had regular contact with the

doctor at the Centre for Torture Survivors. The complainant also claims that his health

condition has deteriorated during the present process and that he is being supported by

various medications, antidepressants and painkillers.

State party’s additional observations

6.

By note verbale of 10 April 2014, the State party submitted its further observations.

It reiterated its previous observations on the author’s failure to exhaust domestic remedies,

because his request for leave to appeal to the Supreme Administrative Court was still

pending. Regarding the complainant’s new appeal, which was rejected by the Immigration

Service, the State party submits that it did not contain any new grounds justifying

international protection. The Immigration Service considered that the complainant’s health

status was not a basis for issuing a residence permit. On 10 July 2014, the State party

informed the Committee that the Supreme Administrative Court had rejected the

complainant’s leave to appeal in its decision dated 17 April 2014.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

Before considering any claim contained in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (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.

7.2

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,

it shall not consider any communication from an individual unless it has ascertained that the

individual has exhausted all available domestic remedies. It notes that in the present case,

the State party has recognized that the complainant has exhausted all available domestic

remedies. Accordingly, the Committee finds no further obstacles to admissibility, it

declares the communication submitted under article 3 of the Convention admissible and

proceeds with its consideration of the merits.

Consideration of the merits

8.1

In accordance with article 22 (4) of the Convention, the Committee has considered

the present communication in the light of all the information made available to it by the

parties concerned.

8 On 9 May 2014, the complainant, through his counsel, informed the Committee that the Supreme

Administrative Court had rejected his leave to appeal in its decision dated 17 April 2014.

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8.2

The issue before the Committee is whether the removal of the complainant to

Angola would violate the State party’s obligation under article 3 of the Convention not to

expel or return (“refouler”) 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 evaluate whether there are substantial grounds for believing

that the complainant would be personally in danger of being subjected to torture upon

return to Angola. In assessing that risk, the Committee must take into account all relevant

considerations, pursuant to article 3 (2) of the Convention, including the existence of a

consistent pattern of gross, flagrant or mass violations of human rights. However, the

existence of a pattern of gross, flagrant or mass violations of human rights in a country does

not of itself constitute sufficient reason for determining that a particular person would be in

danger of being subjected to torture on return to that country. The aim of such a

determination is to establish whether the individual concerned would be personally at a

foreseeable and real risk of being subjected to torture in the country to which he or she

would return.

8.4

The Committee notes that the State party itself has recognized that the human rights

situation in Angola constitutes a matter of concern. The Committee further notes that

Angola signed the Convention on 24 September 2013, but has yet to ratify it. It also notes

that in its recent review of Angola, the Human Rights Committee, when examining the

general human rights situation there, expressed, inter alia, its concern at “information,

including from the State party, of arbitrary arrests and detentions, incommunicado detention

and detention in military custody by the police or security forces in the State party, in

particular of sympathizers of the Front for the Liberation of Cabinda in the enclave of

Cabinda, as well as human rights activists for alleged crimes against the security of the

State” (CCPR/C/AGO/CO/1). The Human Rights Committee further expressed its concern

at “reports of arbitrary and extrajudicial killings by security forces in the State party, in

particular those which occurred in the province of Huambo in 2010, as well as during the

counter-insurgency against the Front for the Liberation of the Enclave of Cabinda in 2010”

(ibid.).

8.5

The Committee also recalls its general comment No. 1 (1997) on the implementation

of article 3 of the Convention, according to which the risk of torture must be assessed on

grounds that go beyond mere theory or suspicion. While the risk does not have to meet the

test of being “highly probable” (para. 6), the Committee notes that the burden of proof

generally falls on the complainant, who must present an arguable case that he or she faces a

foreseeable, real and personal risk.9 The Committee further recalls that, in accordance with

its general comment No. 1, it gives considerable weight to findings of fact that are made by

organs of the State party concerned, while at the same time it is not bound by such findings

and instead has the power, provided by article 22 (4) of the Convention, of free assessment

of the facts based upon the full set of circumstances in every case (para. 9).

8.6

The Committee takes note of the medical evidence presented by the complainant,

including psychiatric examinations. A medical certificate dated 12 October 2010 states that

because of his trauma, the patient needs intensive mental health care and long-term

rehabilitation therapy for trauma. The certificate further states that the complainant is

“extremely sensitive to violence”. The examination dated 6 June 2011 found a scar on the

right cheekbone, “which is most likely to have been caused by having been struck with the

butt of a gun, as the patient explained”. The doctor conducting the examination was of the

opinion that the mental and physical symptoms displayed by the patient were caused by

9 See, inter alia, communications No. 203/2002, A.R. v. Netherlands, decision adopted on 14 November

2003, and No. 258/2004, Dadar v. Canada, decision adopted on 23 November 2005.

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“brutal violence”. The Committee takes note of the submission by the State party that the

injuries indicated in the medical statements are only minor and that the medical

documentation in question does not establish whether the injuries were the consequence of

torture or ill-treatment. The Committee observes, however, that the medical certificate

provided by Mr. X states that the complainant’s medical symptoms are compatible with the

symptoms of someone who has suffered brutal violence and inhuman imprisonment

conditions. It also considers that the State party, in the light of those doubts, could have, for

example, ordered an additional examination of the complainant in order to reach a fully

informed conclusion on the matter.

8.7

The Committee notes that the complainant participated in the activities of the Front

for the Liberation of the Enclave of Cabinda for four years by collecting money and items

and sending them to fighters belonging to the Front in Cabinda, as well as sharing

intelligence information on the government armed forces, and that his claim in that respect

remains unrefuted by the State party. The Committee observes that, owing to the

complainant’s political activities, his previous imprisonment and torture, he is most likely

to attract the attention of the authorities upon return to Angola, thus significantly increasing

the risk of his being arrested and tortured, if returned.

8.8

In light of those considerations read as a whole, and taking into account the reports

regarding the general human rights situation in Angola, especially regarding political

activists in the enclave of Cabinda, which particularly affects members of the opposition,

and in view of the complainant’s past political activities in Angola, his previous

imprisonment and detailed description of torture and ill-treatment suffered there, supported

by substantiating elements adduced as proof thereof by the complainant, such as medical

documentation, the Committee considers that the material before it is sufficient to conclude

that there are substantial grounds for believing that the complainant risks being subjected to

torture if returned to Angola.

9.

The Committee, acting under article 22 (7) of the Convention, concludes that there

are substantial grounds for believing that the complainant would face a foreseeable, real

and personal risk of being subjected to torture by government officials if returned to

Angola. The Committee therefore concludes that the deportation of the complainant to

Angola would amount to a breach of article 3 of the Convention.

10.

The Committee is of the view that the State party has an obligation to refrain from

forcibly returning the complainant to Angola or to any other country where there is a real

risk of him being expelled or returned to Angola. Pursuant to rule 118, paragraph 5, of its

rules of procedure, the Committee invites the State party to inform it, within 90 days of the

date of the transmittal of the present decision, of the steps it has taken in response to the

present decision.