E. V. I. v. Sweden

In accordance with article 22, paragraph 3, of the Convention, the Committee transmitted the communication to the State party on 13 June 2006, and requested it, under rule 108, paragraph 1 of the Committee's rules of procedure, not to expel the complainant to Azerbaijan while his complaint is under consideration by the Committee. The State party subsequently informed the Committee that the complainant had not been deported.

On 22 March 2007, the State party submitted the following additional comments.

With regard to the interview process before the Swedish migration authorities, the State party notes that the complainant was interviewed twice. On the first occasion, the interview lasted 1 hour and 45 minutes and an interpreter translated into Russian. The investigator read out the minutes to the complainant and the complainant stated that everything was correct. On the second occasion, the interview lasted 2 hours and 55 minutes and an interpreter translated into Azeri. The complainant, through his counsel, submitted comments on what he considered to be errors in the minutes of this interview on 17 June 2004. On the second occasion, the interview was conducted in the presence of the complainant’s counsel. The complainant also submitted comments on the translation of some official documents on 21 October 2005. The State party submits that the complainant therefore had ample time to explain and develop his reasons for seeking asylum in Sweden. The State party maintains that the asylum investigation was carried out properly and thoroughly, the complainant having had the opportunity to correct any possible misunderstanding of his statements.

With regard to the complainant’s criticism of the report obtained by the State party through its embassy in Ankara, the State party stresses that there is nothing to indicate that there are any reasons for questioning the reporting organisation’s working methods or the qualities of its inquiries or conclusions and so sees no reason not to rely on the result of the inquiry made in the present case. As regards the complainant’s assertion that he could not obtain a medical certificate in Sweden, the State party responds that there is nothing to indicate that it would have been impossible for him to acquire such a document following a medical examination upon arrival in Sweden.

Before considering any claims contained in a complaint, 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.

With regard to the requirement, under article 22, paragraph 5 (b), of the Convention, that all available domestic remedies be exhausted, the Committee notes that the complainant’s wife has lodged an additional application before a national body seeking residence permits on behalf of herself and her family. The Committee further notes that as the present communication was lodged by the complainant only, the State party has, as far as the circumstances permit, expressly limited itself to addressing the position concerning him only. It observes that the State party has not provided any further information concerning the particular basis of the additional national application made by the complainant’s wife or whether it may be considered to be effective. The Committee further notes that the State party has not, placed any emphasis on this issue, or made any particular objection in this regard, preferring instead to leave it up to the Committee to determine whether all available domestic remedies have been exhausted. Accordingly, the Committee finds it appropriate to determine that the requirements of article 22, paragraph 5 (b), of the Convention have been met as regards the complainant.

The State party submits that the communication is inadmissible under article 22, paragraph 2, of the Convention, on the basis that it fails to rise to the basic level of substantiation required for purposes of admissibility under article 22, paragraph 2, of the Convention. The Committee is of the opinion that the arguments before it raise substantive issues which should be dealt with on the merits and not on admissibility alone.

The issue before the Committee is whether the complainant’s removal to Azerbaijan 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 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 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.

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.

In assessing the risk of torture in the present case, the Committee notes that the complainant claims that he was arrested and detained for periods of two days on two occasions by Azerbaijani authorities, and that during this period he was tortured. It also notes his assertion that there is a foreseeable risk that he would be tortured if returned to Azerbaijan, on the basis of his political activities, his previous detentions and torture and the outstanding arrest warrant.

The Committee observes that the State party questions the complainant’s credibility and the authenticity of the documentation submitted by him, based on the investigations of the Swedish Aliens Appeals Board and the expert report obtained through its embassy in Turkey. In particular, the State party has questioned the complainant’s position within the Musavat party, and at the Musavat party newspaper, and the authenticity of the Musavat party membership card, the alleged decision of detention dated 2 July 2003, the arrest warrant dated 15 January 2004 and the certificates of various Azerbaijani organisations.

The Committee recalls that according to its General Comment No. 1, the burden to present an arguable case is on the complainant of a complaint (A/53/44, annex IX, para. 5). It recalls its jurisprudence that it is for the complainant to collect and present evidence in support of his account of events⁶. While the complainant has provided various copy documents to the State party and the Committee, the Committee considers that the complainant has failed to disprove the State party’s findings and to validate the authenticity of the various documents in question. He has also failed to give any satisfactory response to submissions made by the State party concerning certain issues of fact, such as, for example, with regard to the death of his father, which he had stated was allegedly connected to his political activities. Further, he has not been able to provide any medical evidence to support his claims of mistreatment at the hands of the Azerbaijani authorities.

6. S.L. v Sweden, Communication No. 150/1999, Views adopted on 11 May 2001, para.6.4 ; and M.Z. v Sweden, Communication No. 256, Views adopted on 17 May 2006, para. 9.5 ↩

The Committee reiterates that for the purposes of article 3 of the Convention, the individual concerned must face a foreseeable, real and personal risk of being tortured. On the basis of the above, the Committee has formed the opinion that the complainant has not submitted sufficient satisfactory details or corroborating evidence to substantiate the fact of his detentions by, and treatment at the hands of, the Azerbaijani authorities or the alleged criminal investigation against him and the related arrest warrant. The Committee considers therefore that the complainant has not substantiated that he would personally face such a foreseeable, real and personal risk of being subjected to torture upon his return to Azerbaijan.

The Committee Against Torture, acting under article 22, paragraph 7, of the Convention, considers that the complainant has not substantiated his claim that he would be subjected to torture upon return to Azerbaijan and therefore concludes that his removal to that country 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.]