Convention against Torture RESTRICTED */ \) and Other Cruel, Inhuman CAT/C/18/D/40/1996 or Degrading Treatment 7 May 1997 —7s= or Punishment Original: ENGLISH COMMITTEE AGAINST TORTURE Eighteenth session (28 April - 9 May 1997) VIEWS . ion J / Submitted by: Jamal Omer Mohamed Alleged victim: The author State party: Greece Rate of communication: 8 February 1996 (initial submission)
Documentation references: Prior decisions- Special Rapporteur’s rule 108 (1)
decision, transmitted to the State party on 28 February 1996 (not issued in document form) . - CAT/C/17/D/40/1996 Decision on admissibility dated 14 November 1996.
Date of adoption of Views: 28 April 1997
*/ Made public by decision of the Committee against Torture. VWS18.40e xb
GE.97- 16530 CAT/C/18/D/40/1996 Annex
VIEWS OF THE COMMITTEE AGAINST TORTURE UNDER ARTICLE 22, PARAGRAPH 7, OF THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT - EIGHTEENTH SESSION -
concerning Submitted by: Jamal Omer Mohamed Alleged victim: The author State party concerned: Greece Date of communication: 8 February 1996 (initial submission) Dat € decisi ; admissibility: 14 November 1996
The Committee against Torture, established under article i7 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 28 April 1997,
Having concluded its consideration of communication No. 40/1996, submitted to the Committee against Torture by Mr. Jamal Omer Mohamed 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 author
of the communication, his representative and the State party, Adopts its Views under article 22, paragraph 7, of the Convention.
‘1. The author of the communication is Mr. Mohamed Jamal Omer, an Ethiopian citizen from Dire Dawa, born in 1970, currently residing in Greece. He claims to be a victim of a violation by Greece of article 3 of the Convention against Torture.
2.1 The author states that he was arrested by "kebele" (local administrative)? officers in Ethiopia in 1988 after having begun to give lessons in the local mosque in November that year. He was accused of “anti-revolutionary" activities and held in detention for an unspecified period of time.
2.2 At the beginning of 1989 he was nominated by his peers from school to participate in a political course of one month in Addis Ababa. The nomination was approved by the local administrative officers. After having completed the course, the author was informed that he was to be sent to a remote area in the country, for the purpose of recruiting farmers as soldiers for the Government forces. The area in question was populated by a majority of people of Oromo ethnic origin and was said to be a centre for activities of the Oromo Liberation Front (OLF) .
2 Regular reference is made to “the Kebele", without any explanation. It would appear that “kebele” stands for “local representative”. CAT/C/18/D/40/1996 Annex Page 2
2.3 The author, as well as other participants in the political course who had been selected for the mission which was aimed at breaking OLF influence in the area, considered the task impossible and protested. However, they were sent to the region under threat of execution. Fighting broke out on their arrival and the local inhabitants threw stones at them. Local OLF activists threatened them with death and urged them to leave the area within 48 hours. The author decided to leave the area without further delay and returned to his hometown. He was reported missing by representatives of the Government. In Dire Dawa he was arrested, on an unspecified date, by the local administrative officers, and held in detention for an unspecified period of time, accused of being an OLF collaborator. He states that he was subjected to torture during the detention.
2.4 In support of these claims, the author refers to an enclosed document issued by the Medical Rehabilitation Centre for Torture Victims in Athens, Greece, on 20 November 1994. According to the report the author was examined by a neurologist and an orthopedist, as well as interviewed by a psychologist (during six sessions in October 1994). It is stated that he had been subjected to various forms of torture and subsequently suffered from severe headaches, as well as from pains in the right knee and in the right foot. Reference is also made to a translation of a report from a hospital in Athens, dated 1 February 1995, concerning an electroencephalogram examination.
2.5 As a consequence of the ill-treatment, the author was taken ill. He had a high temperature and vomited repeatedly. He was therefore transferred to a hospital in Dire Dawa. While he was hospitalized there was an exchange of fire in the town between Government soldiers and OLF activists and the power was cut off. He managed to escape from the hospital during the confusion that followed. In this context, he contends that "... a security guard shot dead my father". As Government representatives intensified the search for him, he decided that he had to flee the country.
2.6 The author contends that he crossed the border to Somalia in December 1989 and was held in detention there from 1 January 1990 for five months, accused of illegal entry. Following his release in Somalia, he states that he was told by "the UN office to register with the police". However, the police would not let him register as a refugee "... because of the political situation and (his) being a member of the Aderic Tribe". The author contends that he, with the help of a friend in Somalia, who provided him with a passport and an air fare, managed to leave Somalia for Turkey, on an unspecified date. He states that he was informed by the police in Turkey that Africans were not allowed to register as refugees, and that, for practical purposes, he was forced by the Turkish police to cross the border to Greece, on an unspecified date.
2.7 Upon his arrival in Greece, the author was informed by UNHCR that, before registering with them as a refugee, he must first register with the Greek Police. When he attempted to register with the police, he was told that he had first to ebtain from the International Catholic Migration Commission (ICMC) a document certifying his country of origin. However, from 1991 the ICMC had ceased to issue such documents. Without this document, the Greek Ministry of Public Order, in a decision dated 27 October 1992, refused to register him, as did the Greek Council for Refugees and the UNHCR. The author claims that he was requested, when entering Greece, to indicate a third country to which he would not raise any objections to being deported and that he then mentioned Canada. His request for asylum in Greece was later rejected, "because, after a two year illegal stay in Greece, his application is made to facilitate his transfer to Canada".
3-1 The author claims that his return to Ethiopia would constitute a violation CAT/C/18/D/40/1996 Annex Page 3
of article 3 of the Convention against Torture by Greece. The author fears that, though he is mot currently under an expulsion order, he is at risk of being | deported at any time given that he has no asylum, residence or work permit.
3.2 In support of his argument that he fears torture upon return to Ethiopia, the author refers to an Amnesty international report of April 1995 regarding the human rights situation in Ethiopia, and, in particular, to the case of a certain Hussein, from Dire Dawa, who was accused of being an OLF collaborator in 1993, held in detention and allegedly subjected to torture. He also refers to the case of a Mr. Temteme Addisalem Mengistu, who returned to Ethiopia from Greece after obtaining assurances from the Greek Council for Refugees that his safety was guaranteed, and who was immediately arrested upon arrival, in October 1994.
4. On 28 February 1996, the Committee, through its Special Rapporteur, transmitted the communication to the State party for comments on admissibility.
5.1 By submission of 19 April 1996, the State party challenges the admissibility of the complaint. It notes that, in its view, there are no grounds for a complaint under article 3 of the Convention against Torture, given that the author has not been expelled from Greece, nor has an order for his expulsion been issued. It further points out that it is of the view that the author has not substantiated any danger of being tortured should he return to Ethiopia.
5.2 As regards domestic procedures, the State Party acknowledges that the author's application for asylum was dismissed on 27 October 1992 as "manifestly abusive" by the Minister of Public Order, on the basis that his claim could not be founded on the 1951 Geneva Convention, and that no appeal from this decision was available. On humanitarian grounds, the Minister did not order the expulsion of the author but instead laid down a period of one month within which the author was to leave Greece for a country of his choice.
5.3 The State party notes that on 3 January 1991 the author entered Greece secretly from Turkey, assisted by an illegal migrant traffic network, and did not apply for asylum at this time. Three months later, he registered with the migration programme with a view to emigrating to Canada. One-and-a-half years later, on 3 September 1992, the author applied for asylum in Greece on the pretext that he opposed his country's regime. However, in this application he made no Mention of the change in Government in his home country, despite the fact that this change had occurred since his departure from Ethiopia.
6.1 In his comments on the State party's submission, the author concedes that he has not been deported but states that, as a victim of torture and a political refugee, he has a right to asylum. He expresses the fear that he could be deported at any time.
6.2 The author explains, reiterating the claims made earlier (see paragraph 2.7 above), that he was not able to apply immediately for asylum because of “bureaucratic circumstances”. He further explains that upon entry to Greece, he had no plans to emigrate to Canada. However, following his request for asylum in Greece, he was told that he could not Stay in Greece and would be deported unless he transferred to a third country of his choice. Thus he was obliged to name a CAT/C/18/D/40/1996 Annex Page 4
third country and named Canada. He denies registering for the migration programme to Canada after three months in Greece.
6.3 The author reiterates that he escaped from his own country and was then Geported from Turkey, being left at the Greek border. He did not attempt to enter Greece in secret or seek the assistance of an “illegal migrant traffic network". With regard to the situation in his home country, he submits that he would be in grave danger if returned to Ethiopia, citing an Ammesty International report of April 1995 on the human rights violations of the Transitional Government there.
The Committee's admissibility decision:
7.1 At its 17th session, the Committee considered the admissibility of the communication. It ascertained, as it is required to do under article 22, paragraph 5(a), of the Convention that the same Matter had not been and was not being examined under another procedure of international investigation or settlement. The Committee was further of the Opinion that all domestic remedies available to the author had been exhausted, as required by article 22, paragraph 5(b). The Committee found that no other obstacles to the admissibility of the communication existed.
7.2 In order to facilitate its examination of the merits of the communication, the Committee requested the author to provide more precise and detailed information to substantiate his fear that he personally would be in danger of being subjected to torture should he return to Ethiopia at this time. Further, the Committee requested the State party to provide information on the possible consequences for the author of non-compliance with the request of the Minister of Public Order that he leave the country.
8. Accordingly, on 14 November 1996, the Committee against Torture decided that the communication was admissible.
9.1 By submission of 28 January 1997, the author reiterates that he was in prison from 5 November to 6 December 1988, and again from 28 June 1989 onwards. The second time he was accused of collaborating with the OLF. He states that this accusation still stands, since the OLF is also in opposition to the current government. He adds that the OLF accuses him of being a Government spy.
9.2 For the above reasons, he states that he would be in serious danger if he were to return to Ethiopia. He refers to an Amnesty International report of July 1996, which shows that the human rights situation in Ethiopia is still unacceptable.
10.1 By submission of 8 March 1997, the State party reiterates that the author has not been expelled from the country, and clarifies that he remains in Greece for humanitarian reasons. The State party thus argues that article 3 of the Convention has not been violated. CAT/C/18/D/40/1996 Annex Page 5
10.2 The State party acknowledges that at the time, no appeal was available to an asylum seeker whose request was rejected as abusive, but states that the non- availability of an appeal as such does not constitute a violation of the Convention against Torture. The State party adds that the law has been amended since.
10.3 The State party further points out that an individual always has the possibility of lodging an appeal with the Council of State, concerning the legality of any administrative decision.
11.1 The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22, paragraph 4, of the Convention.
11.2 Under article 3 of the Convention against Torture, the Committee is required to decide whether an expulsion, return or extradition of an individual would breach the obligation of a State party not to expose that individual to the danger of being subjected to torture. The Committee cannot determine whether or not the claimant is entitled to asylum under the national laws of a country, or can invoke the protection of the Geneva Convention relating to the Status of Refugees.
11.3 In the instant case, the Committee notes that the State party has not ordered the author's expulsion, return or extradition to Ethiopia, and has stated that the author remains in Greece for humanitarian reasons. It also appears from the State party's submission that, were the authorities to order his deportation at a later stage, the author would have an appeal possibility against such decision. The Committee is therefore of the opinion that the facts before it do not show any violation of the Convention by Greece.
12. The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is of the view that the facts as found by the Committee do not reveal a breach of article 3 of the Convention.
{Done in English, French, Russian and Spanish, the English text being the original version.]