M. R. A. v. Sweden

The complainant is M. R. A., an Iraqi citizen born in 1960, currently awaiting deportation from Sweden to Iraq. He claims that his deportation to Iraq would constitute a violation by Sweden of article 3 of the Convention against Torture. He is represented by counsel.

By Note Verbale of 17 January 2006, the Committee transmitted the complaint to the State party, together with a request under rule 108, paragraph 1, of the Committee’s Rules of Procedure, not to expel the complainant to Iraq pending the Committee’s consideration of his complaint.

In 1995, the complainant, who is Shia-Muslim, left Iraq for Lebanon, allegedly because of problems he had in Iraq in relation to his family members’ political involvement. In September 1995, he was recognised as a refugee by UNHCR in Lebanon. Due to the difficult situation for refugees in Lebanon, he left the country by boat in 1997 together with other Iraqis, but the boat capsized. The complainant, who was collected by Israelis, applied for asylum in Israel and sought Israeli protection against being returned to Iraq.

The complainant’s enemies in Iraq, including his former wife and her new husband, informed the media in Iraq that he had sought asylum in Israel. According to the complainant, this fact was spread in Iraq and he was accused of having converted to Judaism. Counsel indicates that the situation of Jews, and of anyone who is seen to collaborate with Judaism, is difficult in Iraq. To illustrate this point, she refers to a fatwa issued in June 2003 according to which every Jew who buys land or a house in Iraq must be executed and it is forbidden for all Iraqis to sell land or houses to people who might be Jewish. While the complainant initially claimed that a fatwa had been issued against him, counsel submits a copy of the fatwa, and refers to correspondence with Professor H. from Lunds University. According to him, that fatwa is probably taken from a book of fatwas written by a Shiaa religious authority and is not specifically issued against the complainant. The fatwa allows anyone to kill people who collaborate with Jews or who have abandoned the Islamic religion. According to professor H., the complainant’s life is probably at great risk because many people in Iraq believe that he has abandoned Islam. The complainant submits a letter from the President of the Swedish Muslim Association confirming that a mere rumour that a person has converted to Judaism is sufficient to put that person’s life at risk, and recommending the Swedish authorities not to deport the complainant to Iraq.

The complainant claims that the situation in Iraq remains extremely violent and instable. Due to the chaotic situation there, it is unlikely that he can get protection from the authorities.

The complainant claims that his deportation to Iraq would constitute a violation of article 3 of the Convention, as he has a strong fear of being punished with death or being tortured or exposed to inhuman or degrading treatment because of the general situation in Iraq, the fatwa, and the fact that he applied for asylum in Israel and has been accused of having collaborated with Judaism.

On 28 July 2006, counsel commented on the State party’s observations. On the admissibility, counsel refutes the State party’s claim that the communication fails to rise to the basic level of substantiation required for purposes of admissibility. She refers to UNHCR´s earlier refugee statement and the letters from Professor H. and the President of the Swedish Muslim Association. She maintains that there is a great risk that the complainant will be tortured or even killed if forcibly returned to Iraq and claims that the communication is admissible.

On the merits, counsel refutes the State party’s argument that an incident which took place ten years ago would not be of interest of the people in general or from religious communions in Iraq. She refers to Professor H.’s and the President of the Swedish Muslim Association’s conclusions.

On the complainant’s credibility, counsel submits that many asylum seekers fail to disclose their travel route, for various reasons. She submits that this does not however mean that the asylum seeker is untrustworthy. She invokes the principle on the benefit of the doubt and refers to UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (paras. 203 to 205)⁹. She adds that the complainant’s statement is coherent and plausible and does not run counter to generally known facts. It is a fact that he and others were on Israeli television and that a fatwa can and probably will be used against him.

9. (2) Benefit of the doubt 203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt. 204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts. (3) Summary 205. The process of ascertaining and evaluating the facts can therefore be summarized as follows: (a) The applicant should: (i) Tell the truth and assist the examiner to the full in establishing the facts of his case. (ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence. (iii) Supply all pertinent information concerning himself and his past experience in as much detail as is necessary to enable the examiner to establish the relevant facts. He should be asked to give a coherent explanation of all the reasons invoked in support of his application for refugee status and he should answer any questions put to him. (b) The examiner should: (i) Ensure that the applicant presents his case as fully as possible and with all available evidence. (ii) Assess the applicant's credibility and evaluate the evidence (if necessary giving the applicant the benefit of the doubt), in order to establish the objective and the subjective elements of the case. (iii) Relate these elements to the relevant criteria of the 1951 Convention, in order to arrive at a correct conclusion as to the applicant's refugee status. ↩

On the State party’s contention of lack of evidence, counsel refers to UNHCR´s handbook¹⁰, according to which it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. The complainant immediately informed the Swedish authorities of the 1997 events and the consequences they may have on him. Counsel refers to Professor H.’s correspondence, where he stated that on the basis of the facts relating to the complainant, he could not provide a confident assessment of the risks that he may face if forcibly returned to Iraq. However, he indicated that due to the fatwa and the complainant’s time in Israel, he could be in danger if returned.

10. See above. ↩

Counsel criticises the State party’s reference to the taped telephone conversation, which was quoted out of its context. The complainant’s link to Sweden is not weak. His mother, brother and sister live here, while he has no relatives left in Iraq.

Counsel argues that the complainant has committed a crime and has been sentenced to 8 years imprisonment. He has served his time and according to a Swedish concept of justice, a person who has served his punishment is free of guilt. He was also sentenced to expulsion. However, the complainant was to be expelled to the Netherlands, not to Iraq.

Counsel contends that the situation in Iraq remains extremely violent and instable. Different kinds of sabotages occur every day and different groups are fighting concerning the new regime and there are still violent demonstrations on the foreign military presence in the country. 100 Iraqi citizens are killed every day and at the date of counsel’s comments, over 6.000 civilians had been killed the previous two months. Due to the well-known chaotic situation in Iraq, it is unlikely that the complainant can be given protection in Iraq.

On the State party’s contention that the complainant could live in Kurdistan, counsel submits that the complainant is originally from Al Quasem, 100 kilometres outside Bagdad. Because of harassments he was subjected to due to his family’s political involvement, he moved to the northern parts of Iraq during the period of 1992-1995. While living there he was accused of being a spy and was even arrested by the Kurds. The situation in Kurdistan for a Shiaa Arab is not better than in the rest of Iraq. Arabs are given a three months residence permit and thereafter have to report to the police. After the invasion thousands of families have been forcibly deported from Kurdistan.

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 considered under another procedure of international investigation or settlement. The Committee further notes that the State party does not challenge the admissibility of the complaint on the ground of non-exhaustion of domestic remedies and that the complainant has sufficiently substantiated his allegations for purposes of admissibility. Accordingly, the Committee considers the complaint admissible and proceeds to its consideration of the merits.

The Committee has considered the complaint in the light of all the information made available to it by the parties, in accordance with article 22, paragraph 4, of the Convention.

The issue before the Committee is whether the complainant's removal to Iraq would constitute a violation of the State party's obligation, under article 3 of the Convention, not to expel or return a person to a State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

In assessing whether there are substantial grounds for believing that the complainant would be in danger of being subjected to torture if returned to Iraq, the Committee must take account of all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the aim of such an analysis is to determine whether the complainant runs a personal risk of being subjected to torture in the country to which he would be returned. It follows that the existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances. 7.4. The Committee recalls its general comment on the implementation of article 3, that "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"¹¹.

11. A/53/44, annex IX, para. 6. ↩

In the present case, the Committee observes that the complainant’s allegations that he would risk being tortured if returned to Iraq rely on the fact that he applied for asylum in Israel in 1997, that he has been accused of having converted to or collaborated with Judaism, and on the general situation in Iraq. The Committee notes the State party’s allegations that the complainant has failed to produce evidence as to the events in 1997, as to his claim that he is widely known to the Iraqi people or the religious communions in Iraq. The Committee notes in particular that the complainant has not converted to Judaism and that there is no indication as to who accused him of having done so, nor any evidence that he is believed in Iraq to have done so, or to have applied for asylum in Israel.

The Committee has taken note of the complainant’s argument that he was sentenced to expulsion to the Netherlands and not to Iraq. The Committee observes however, and is satisfied, that during the asylum proceedings, the Swedish authorities assessed the consequences of a removal to Iraq. In view of the foregoing, the Committee considers that the complainant has not demonstrated the existence of substantial grounds for believing that his return to Iraq would expose him to a real, specific and personal risk of torture, as required under article 3 of the Convention.

Accordingly, 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 return of the complainant to Iraq does not reveal 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.]