CAT/C/80/D/1068/2021

GE.24-14784 (E) 170924 170924

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1068/2021*, **

Communication submitted by:

A.A. (represented by counsel, Niels-Erik

Hansen)

Alleged victim:

The complainant

State party:

Denmark

Date of complaint:

25 March 2021 (initial submission)

Document references:

Decision taken pursuant to rule 115 of the

Committee’s rules of procedure, transmitted to

the State party on 6 April 2021 (not issued in

document form)

Date of adoption of decision:

12 July 2024

Subject matter:

Deportation to Morocco

Procedural issue:

Level of substantiation of claims

Substantive issue:

Risk of torture, if deported to country of origin

(non-refoulement)

Articles of the Convention:

3 and 16

1.1

The complainant is A.A., a national of Morocco born in 1992.1 He applied for asylum

in Denmark, but his application was rejected. He is facing deportation to Morocco and

submits that his deportation would constitute a violation by the State party of articles 3 and

16 of the Convention. The State party has made the declaration pursuant to article 22 (1) of

the Convention, effective from 27 May 1987. The complainant is represented by counsel.

1.2

On 6 April 2021, pursuant to rule 114 of its rules of procedure, the Committee, acting

through its Rapporteur on new complaints and interim measures, requested the State party

not to deport the complainant to Morocco while the communication was being considered.

1.3

On 14 April 2023, pursuant to rule 115 (3) of its rules of procedure, the Committee,

acting through its Rapporteur on new complaints and interim measures, rejected the State

party’s request that the admissibility of the communication be considered separately from the

* Adopted by the Committee at its eightieth session (8–26 July 2024).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,

Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.

1 In its report of 2 November 2016, the Department of Forensic Medicine concluded that the

complainant was most likely between 19 and 20 years of age or older. On 29 November 2016, the

complainant replied that he was born in 1999. On the same date, the Danish Immigration Service

decided that 1997 was to be registered as the complainant’s date of birth.

United Nations

CAT/C/80/D/1068/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

17 September 2024

Original: English

CAT/C/80/D/1068/2021

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merits. On 29 May 2024, the Committee also denied a request by the State party to lift the

interim measures.

Factual background

2.1

On 14 October 2016, the complainant entered Denmark without valid travel

documents, and he applied for asylum on the same day. The Danish Immigration Service

interviewed him on 25 October 2016 and 9 October 2017. He claimed that he had been

detained and tortured by the Moroccan authorities as a result of his participation in peaceful

demonstrations for the independence of Western Sahara. He submitted that his fingernails

had been ripped out and that he had been raped. 2 Following an examination of the

complainant on 26 January 2018, the Department of Forensic Medicine concluded in a report

of 5 March 2018 that he displayed physical and psychological signs that could be compatible

with sequelae of the alleged abuse. According to a psychiatric report of 22 February 2018,

the complainant was suffering from post-traumatic stress disorder.

2.2

On 15 August 2018, the Danish Immigration Service rejected the complainant’s

asylum application. The complainant appealed to the Refugee Appeals Board. By letter of

17 July 2019, the Board summoned the complainant to appear at a hearing, but he failed to

do so.3 By letter of 30 July 2019, the complainant’s counsel submitted a brief in the case. On

the basis of the information available, the Refugee Appeals Board found that the complainant

did not have a lawful excuse for failing to appear at the hearing and therefore decided to

proceed with the hearing of the case.4

2.3

On 12 August 2019, the Refugee Appeals Board upheld the decision of the Danish

Immigration Service. The Board found no basis for dismissing the complainant’s statements

that he had participated in a number of demonstrations in Western Sahara against the

Moroccan authorities and that he had also been detained by the authorities in connection with,

inter alia, his participation in those demonstrations. However, the Board considered uncertain

his statement that, during those periods of detention, he had been subjected to torture. The

medical examination of the complainant showed that his mental state was compatible with

sequelae of the trauma to which he had allegedly been subjected and that signs of violence

were present in several places on his body and might well have been caused by a blunt object.

However, the medical examination did not show any other signs of violence confirming the

complainant’s statements that his fingernails had been ripped out and that he had been

subjected to rape, although it appeared from the report by the Department of Forensic

Medicine that these negative findings did not disprove the complainant’s statements on the

matter.

2.4

The Refugee Appeals Board considered that the complainant’s statement that he had

been subjected to very serious abuse must be viewed in connection with background

information on the situation in Morocco, as well as with information on the complainant’s

actions after he had allegedly been subjected to abuse by the authorities on several occasions.

In its assessment of the complainant’s statement on the matter, the Board also considered the

circumstance that the complainant had failed to appear before it and had therefore not been

able to give specific answers to questions on the matter.

2.5

According to background information on the situation in Morocco, torture occurs in

the country, and sources have reported that even peaceful demonstrations in Western Sahara

are broken up with the use of force. However, the Refugee Appeals Board noted that,

according to the Human Rights Committee, the extent of torture in the country had declined

since 2004.5 The Board was aware that protesters in Western Sahara were at risk of being

exposed to violence during demonstrations and when arrested, but it considered less likely

2 No further details were provided.

3 In its observations of 14 July 2023, the State party mentions that the complainant’s counsel attended

the hearing before the Refugee Appeals Board and presented the complainant’s case on his behalf.

4 Rule 36 (2) of the rules of procedure of the Refugee Appeals Board provides that, where a medical

certificate is submitted proving that the asylum-seeker’s non-appearance was due to illness preventing

the asylum-seeker from appearing, the Board will adjourn the case.

5 No further details were provided.

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that there was a risk of being subjected to torture or repeated and serious abuse, such as the

abuse alleged by the complainant.

2.6

When this background information was viewed in conjunction with the fact that,

according to his own statement, the complainant had remained in Western Sahara and had

continued to participate in demonstrations despite the violent abuse, that members of his

family, who had also participated to some degree in the demonstrations, had remained in

Western Sahara and that he had remained in Western Sahara for one year after his most recent

detention, the Refugee Appeals Board found that the complainant’s statement that he had

been subjected to abuse and violence by the Moroccan authorities could not be considered as

a proven fact. The Board therefore concluded that, although it could not be ruled out that the

complainant would face some risk of being subjected to violence by the authorities if he

continued to participate in demonstrations in Western Sahara, it could not be considered a

fact that he would be at risk of persecution or abuse justifying asylum.

2.7

On 3 April 2020, the complainant requested the reopening of his asylum case on the

basis that his non-appearance before the Refugee Appeals Board had been due to a

misunderstanding, which should not be held against him.6 Although the complainant had

been informed in due time of the date of the hearing by a letter from his lawyer, his mental

issues, which could be at the origin of his inability to fully understand his obligations, had

already been confirmed in a medical report. On 29 October 2020, the Refugee Appeals Board

refused to reopen the asylum proceedings due to a lack of substantial new information in the

case beyond the information available at the initial hearing before the Board. The Board noted

that the complainant had been duly summoned to the hearing, and the information made

available to it did not change its assessment as to the risk of abuse in case of return.

2.8

On 28 January 2021, the complainant brought his case before the European Court of

Human Rights, under article 3 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (European Convention on Human Rights). On 10 February 2021, the

Court, sitting in a single-judge formation, declared the application inadmissible because, in

the light of all the material in its possession, and insofar as it had jurisdiction to examine the

allegations made, the conditions of admissibility provided for in articles 34 and 35 of the

European Convention had not been fulfilled.

Complaint

3.1

The complainant submits that, if he is returned to Morocco, he faces a real risk of

being tortured as a result of his political activity, in violation of article 3 of the Convention.

Even if the State party manages to obtain diplomatic assurances to prevent his ill-treatment,

this will not eliminate the risk.

3.2

The complainant contests the finding of the domestic authorities and the fact that he

was not heard by the Refugee Appeals Board in person, reiterating that, due to a

misunderstanding, he had believed that the hearing had been scheduled for 13 August 2019

instead of 12 August 2019. As medical reports confirm that he is a victim of torture and

suffers from post-traumatic stress disorder, he should have been heard in person by the Board

to be given the opportunity to elaborate on his claims.

3.3

The complainant claims that the State party also failed to consider and assess his

claims in the light of the situation of human rights in Morocco, in particular information on

how other participants in demonstrations relating to Western Sahara have been detained by

the police and subjected to torture similar to that to which he was subjected and the lack of

investigations into allegations of torture.7

6 He claimed that he thought the hearing had been scheduled for 13 August 2019 instead of 12 August

2019.

7 Amnesty International, “Morocco/Western Sahara: investigate brutal crackdown on Sahrawi

protesters”, 1 August 2019, and “Morocco: getting away with torture”, 12 January 2018; and Human

Rights Watch, “Morocco/Western Sahara – events of 2019”.

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3.4

The complainant also claims that the fact that, on 22 May 2020, the Danish authorities

put him in detention pending deportation is a form of torture or inhuman treatment.8

State party’s observations on admissibility and the merits

4.1

On 12 July 2021 and 14 July 2023, the State party submitted its observations on

admissibility and the merits. It challenges the admissibility of the complaint on the ground

that the complainant’s case has already been examined by the European Court of Human

Rights. It also submits that the complainant’s claims are manifestly unfounded within the

meaning of rule 113 (b) of the Committee’s rules of procedure, because he has failed to

establish that there are substantial grounds for believing that his deportation to Morocco

would constitute a violation of articles 3 and 16 of the Convention.

4.2

On the merits, the State party recalls in detail the decisions issued at the domestic

level. It submits that the complainant merely disagrees with the assessment made by the

Refugee Appeals Board of his specific circumstances and of the background information and

that he has failed to identify any irregularity in the decision-making process or any risk

factors that the Board did not properly take into account. The complainant had the

opportunity to present his views, both in writing and orally, with the assistance of legal

counsel, even though he failed to attend a hearing.

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

merits

5.1

On 13 March and 31 October 2023, the complainant submitted his comments on the

State party’s observations. In particular, he considers that his case has not been examined by

the European Court of Human Rights because it was rejected as being inadmissible. He

submits that his brother was taken into custody by the Moroccan police on 30 September

2023 and was subjected to torture or inhuman treatment during interrogations, according to

information from his family. He tried to obtain evidence of his brother’s treatment, to no

avail. His brother remains in detention.

5.2

In addition, the complainant raises violations of article 12, since he, a torture survivor,

was kept in prison pending deportation for several months, and article 14, for lack of

opportunities for rehabilitation if returned to Morocco.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any complaint submitted in a communication, the Committee must

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

State party’s argument that the communication is inadmissible, as the European Court of

Human Rights has already examined the matter raised in the present communication. The

Committee recalls that it considers that a communication has been or is being examined by

another procedure of international investigation or settlement if the examination by the other

procedure relates or related to the same matter within the meaning of article 22 (5) (a), which

must be understood as relating to the same parties, the same facts and the same substantive

rights. The Committee notes that the complainant does not contest that the application

submitted to the Court related to the same parties, the same facts and the same substantive

rights as the present communication. However, the Committee observes that, on 10 February

2021, the European Court of Human Rights, sitting in a single-judge formation, declared the

complainant’s application inadmissible on the basis that the admissibility criteria set out in

articles 34 and 35 of the European Convention on Human Rights had not been met, without

providing any explanation as to the specific reasons that had led it to reach such a finding.

The Court’s decision does not allow the Committee to verify the extent to which the Court

examined the complainant’s application, including whether it conducted a thorough analysis

8 He was released on an unknown date.

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of the elements related to the merits of the case. The Committee therefore considers that it is

not precluded by article 22 (5) (a) of the Convention from examining the communication.9

6.2

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. The Committee notes that, in the

present case, the State party has not challenged the admissibility of the complaint on these

grounds.

6.3

The Committee notes that the complainant did not claim that his rights under

articles 12 and 14 of the Convention had been violated until he commented on the State

party’s observations and that, as a result, this claim was not one of those on the admissibility

and merits of which the State party was invited to comment. The complainant has not shown

why this claim could not have been made at an earlier stage of the proceedings. The

Committee therefore finds this claim inadmissible under article 22 (2) of the Convention.10

6.4

The Committee notes the complainant’s claim that the State party violated article 16

of the Convention by detaining him pending deportation. In the absence of any further

information or explanation on file, the Committee considers that the deprivation of liberty in

itself is insufficient to substantiate the complainant’s claim of a violation of article 16 of the

Convention.11 Accordingly, the Committee finds that this part of the communication is not

sufficiently substantiated for the purpose of admissibility.

6.5

The Committee notes that, in the present case, the State party has contested the

admissibility of the communication, stating that it is manifestly unfounded and thus

inadmissible pursuant to article 22 (2) of the Convention and rule 113 (b) of the Committee’s

rules of procedure. The Committee notes the State party’s argument that the complainant

failed to establish that there are substantial grounds for believing that his deportation would

constitute a violation of articles 3 and 16 of the Convention. The Committee recalls that it is

for the courts of States parties to the Convention, and not for the Committee, to evaluate the

facts and evidence in a particular case, unless it can be ascertained that the manner in which

such facts and evidence were evaluated was clearly arbitrary or amounted to a denial of

justice.12 The Committee gives considerable weight to findings of fact made by organs of the

State party concerned; 13 however, it is not bound by such findings. It follows that the

Committee will make a free assessment of the information available to it in accordance with

article 22 (4) of the Convention, taking into account all the circumstances relevant to each

case.14

6.6

In the present case, the Committee observes that the State party’s immigration and

judicial authorities thoroughly examined the facts and evidence presented by the complainant

– including his medical reports and the background information regarding the treatment of

participants in demonstrations in relation to Western Sahara – and considered that, while he

might have participated in such demonstrations against the Moroccan authorities and been

detained by the authorities, it had not been shown that he had been tortured by the authorities.

On that basis, the authorities concluded that the complainant had not established the existence

of substantial grounds to show that he would face a foreseeable, real and personal risk of

being tortured if returned to Morocco. The Committee also notes that the complainant

contests the assessment made by the State party’s authorities of his credibility. However, the

Committee observes that the complainant provided no documentation or other evidence to

substantiate his assertions and that the authorities of the State party found, after a thorough

assessment of all the facts and evidence presented at different levels of jurisdiction, that the

9 J.M. v. Netherlands (CAT/C/66/D/768/2016), para. 9.1; J.I. v. Netherlands (CAT/C/66/D/771/2016),

para. 9.1; and Cubrilov Jovic et al. v. Serbia (CAT/C/72/D/939/2019), para. 6.1.

10 Melie v. Switzerland (CAT/C/76/D/1049/2021), para. 6.3.

11 S.A.M. v. Denmark (CAT/C/64/D/693/2015), para. 7.3.

12 G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; Z.S. v. Georgia (CAT/C/70/D/915/2019),

para. 7.4; and S.K. v. Australia (CAT/C/73/D/968/2019), para. 12.5.

13 For example, T.D. v. Switzerland (CAT/C/46/D/375/2009), para. 7.7; and Alp v. Denmark

(CAT/C/52/D/466/2011), para. 8.3.

14 For example, I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.4. See also general comment

No. 4 (2017), para. 50.

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complainant had not provided sufficient evidence that he was at a foreseeable, real and

personal risk of being tortured if returned to Morocco. Therefore, the Committee finds that

the complainant has not established that the domestic evaluation of the facts and evidence

concerning the complainant’s alleged risk of treatment contrary to the Convention upon

return to Morocco suffered from any defects.15

6.7

In particular, the Committee notes the complainant’s allegation that he did not have

an oral hearing before the Refugee Appeals Board. It also notes the State party’s argument

that the complainant was legally summoned and did not have a lawful excuse for his absence

and that, although he did not participate in person, his legal counsel attended that hearing and

presented the complainant’s case on his behalf. The Committee therefore considers that the

complainant has not demonstrated that he was put at any particular legal disadvantage as a

result, since he was able to make submissions and present his arguments, with the assistance

of counsel.16

6.8

The Committee recalls its earlier decisions in which it found claims to be manifestly

unfounded where the author of a communication failed to submit substantiated arguments

showing that the danger of being subjected to torture was foreseeable, present, personal and

real. The Committee also recalls that, for a claim to be admissible under article 22 of the

Convention and rule 113 (b) of its rules of procedure, it must not be manifestly unfounded.

In the light of the above, and in the absence of any further relevant information, the

Committee concludes that the complainant has failed to substantiate his claims sufficiently

for the purpose of admissibility.17

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (2) of the Convention;

(b)

That the present decision shall be communicated to the complainant and to the

State party.

15 S.K. v. Australia, para. 12.5.

16 Melie v. Switzerland, para. 7.9

17 S.K. v. Australia, para. 12.6.