E.J. et al. v. Azerbaijan,Sweden

The complainants are E. J. et al., all Azerbaijani citizens and currently awaiting deportation from Sweden to Azerbaijan. They claim that their deportation would constitute a violation by Sweden of article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The complainants are represented by counsel.

On 26 October 2006, the Rapporteur for new complaints and interim measures requested the State party not to deport the complainants to Azerbaijan while their case is under consideration by the Committee, in accordance with rule 108, paragraph 1, of the Committee's rules of procedure. On 27 September 2007, the State party acceded to this request.

On 14 January 2001, E. J, who was a student in Baku, joined the Azerbaijan Democratic Party (ADP), an opposition party aiming at establishing democracy in Azerbaijan and defending human rights. E. J. occupied several posts in the party, including party secretary in the Nerimov District between 18 March and 21 October 2001. Subsequently, he became an “instructor” and was responsible for “strategic questions and education”. According to the complainants, as a consequence of his active participation in the ADP, E. J. was expelled from his university and from the professional basketball team in which he was playing.

On 21 June 2003, E. J. was arrested while demonstrating in Baku. He was brought to the police station where he was detained with other ADP members for ten days. He claims to have been exposed to physical abuse by two policemen. In particular, he claims that he was kicked and hit repeatedly with a truncheon over his body every day for periods of 30 minutes, until he was released on 1 July 2003.

On 16 October 2003, E. J. was arrested a second time while demonstrating against the alleged irregularities of the presidential elections. He was found guilty for having hit a policeman, which he denies. He was then sentenced to fifteen days and detained for this period. He claims that he was subjected to repeated severe physical abuse, as a result of which he once lost consciousness. He does not describe the type of treatment received but says that it was carried out in the same way as during his first arrest but was more severe. He contends that, while in detention, he was put under pressure by the authorities to end his political activities within the ADP.

The complainants argue that E. J.’s arrests, the humiliation and the severe physical abuse he was exposed to were not only the results of his involvement in the demonstrations, but were related to his active participation in the ADP. He is convinced that the authorities wanted to set an example to dissuade others from engaging in political activities.

In the beginning of 2004, E. J. and his wife claim to have been constantly threatened by the authorities. Following such threats, A. J. who was pregnant at the time became very stressed and had to undergo a Caesarean section during which their son was born with disabilities. On 20 May 2004, E. J. took part in yet another demonstration, during which the police arrived and beat demonstrators with truncheons. Some demonstrators were arrested but E. J. managed to escape². Subsequently, he and his family fled to the Russian Federation and then to Sweden where they applied for asylum on 12 August 2004.

2. During his first interview, E.J produced the following documents: an identity card, ADP membership, three political party documents and two what he refers to as “arrest warrants”. He provides no explanation of these documents. ↩

On 31 May 2005, the complainant’s application for asylum was rejected by the Migration Board. The Board noted that Azerbaijan was a member of the Council of Europe (CoE) and has undertaken legal reforms to ensure the respect for human rights. It did not contest the facts presented by the complainants but found it unlikely that E. J. would face a risk of persecution if he returned to Azerbaijan, where several political opponents had recently been released. The complainants appeal to the Aliens Appeals Board was rejected on 1 November 2005. The complainants’ application for permanent residence permits on humanitarian grounds was also denied on 25 July 2006 and a request for review of this decision was rejected on 17 August 2006.

As to the general human rights situation in Azerbaijan, the complainants provide copies of reports from Human Rights Watch, dated January 2006, Amnesty International, dated 2005 and the International Helsinki Federation for Human Rights, dated 2006. All reports denounce a consistent pattern of gross, flagrant and mass violations of human rights particularly towards political opponents.

The complainants claim that Sweden would violate article 3 of the Convention in deporting them to Azerbaijan, as there is a real risk that E. J. will be subjected to torture, on account of his membership and activities on behalf of the ADP.

On 16 March 2008, the complainants commented on the State party’s response. They reiterate their previous arguments, and reaffirm that E. J.’s account of the events in Azerbaijan was consistent throughout the asylum process and never questioned by the authorities. His credibility was neither contested by the Migration Board or the Aliens Appeal Board, both of which acknowledged the facts as presented by him but concluded that he was arrested due to his participation in the demonstrations and not because of his position in the ADP. They admit that due to errors of translation the documents submitted by them to support their case were incorrectly defined as “arrest letters”/arrest warrants” and are in fact “judgements” as described by the State party.

The complainants submit that it is hard to contest the credentials of the lawyer engaged by the Swedish Embassy in Ankara, since no specific information is given about him. They question whether this lawyer is independent and, without any relation to the current regime, and highlight the widespread corruption which, they claim, must be taken into account when assessing the veracity of this lawyer’s findings⁶. They question how this lawyer obtained this information without connections to the current regime. As to the information from A. S., that E. J. was never a member of the ADP, the complainants argue that the State party has provided no written evidence to this effect, but that this information was only provided orally. They regret that they have been unable to contact Mr. Shabazov themselves to deny that he made such a statement but claim that since his son was imprisoned in Azerbaijan, it has been impossible to reach him. As to the information given by the director of E. J.’s ex-university, the complainants explain that it stands to reason that a director of a state-controlled organ would never admit that a politically active person was expelled, as such a confession would be an admission that persecution on the basis of political opinion exists. They also deny that E. J. ever had to pay university fees, due to his athletic achievements. The complainants reiterate that the judgements are genuine and cannot understand why the judges in question deny having signed them. They argue that they may have been threatened inter alia by the government to make such false statements. In short, the State party is only basing its decision on the findings of one person – the lawyer who drafted the report.

6. The complainants refer to studies carried out by the OECD (Organisation for Economic Cooperation and Development) and GRECO (Group of States against Corruption of the Council of Europe) to demonstrate their argument on the level of corruption in Azerbaijan. ↩

The complainants submit that the fact that the ADP is an officially registered and legal organization in Azerbaijan does not de facto constitute a guarantee that E. J. will not be arrested and tortured upon return. ADP members have been arrested and tortured before and a number of well known sources report that the government still persecutes political opponents, whether they are registered or not. E. J. held a leading position in the party, compared to ordinary members, in that he was party secretary for the Nerimov District, and subsequently appointed instructor during which time he also became responsible for “strategic questions and education”. However, the complainants also argue that being at a lower level within a party makes it easier for the authorities to persecute the individuals concerned as, unlike internationally well-known leaders, such individuals do not have the protection of the international community. In their view, the authorities will be even more suspicious if E. J. returns after four years and thus more likely to be arrested and tortured. As to the State party’s argument that the complainants have provided no evidence of past torture, the complainants contend that it is for the Committee to consider whether they will be subjected to torture upon return now and should thus be forward looking.

As to the State party’s view that there is no general need for protection of asylum seekers from Azerbaijan, the complainants submit that they never made this claim, but rely on their argument that E. J. is currently personally at risk. They question whether the Swedish migration authorities apply the same kind of test as the Committee when considering an application for asylum under the 1989 Aliens Act, as the test applied is one of a “well-founded fear” rather than “substantial grounds” for believing that an applicant would be subjected to torture, as in the Convention. According to the complainants, the decisions of the authorities should be regarded as “standard decisions” with regard to asylum seekers from Azerbaijan claiming persecution on grounds of political belief. On the general human rights situation in Azerbaijan, the complainants submit that the situation has deteriorated and refers to two reports from the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment of the Human Rights Council, in the basis of which the complainants’ consider that there is a consistent pattern of gross, flagrant and/or mass violations of human rights within the meaning of article 3 of the Convention, in Azerbaijan⁷. They also refer to the Ministry of Foreign Affair’s report of 2006, which states that as a whole the human rights situation did not improve in 2006. It underlines the existence of torture and ill-treatment, restrictions on the freedom of speech, the oppression of civil society, police brutality and arbitrary arrests.

7. It is not clear to which reports the complainants are referring. No information is provided by the complainants in this regard. ↩

On 22 September 2008, the State party submits that it has in several previous complaints before the Committee asked for the assistance of one of its embassies in order, inter alia, to verify information or documents submitted by the complainants concerned, in particular, in relation to asylum seekers from Azerbaijan. From the Views of the Committee in these cases⁸, it is evident that the reports from the Embassy in Ankara also include findings that verify information submitted by the concerned complainant as well as the authenticity of documents invoked. The State party submits that the Embassy in Ankara is well aware of the importance of the integrity and discretion of the person chosen, as well as the sensitivity of the issues involved. The Embassy normally uses external expertise for its reports in these cases, it exercises great caution in selecting suitable persons to assist it and the persons chosen are independent of the authorities and political parties in Azerbaijan. On this occasion, the Embassy used the services of a human rights lawyer in Baku who has a wide network of contacts among human rights organisations and opposition political parties in Azerbaijan. The State party is of the view that it is legitimate not to identify the lawyer engaged for security reasons and states that his services were previously used in relation to another case decided by the Committee: Z.K. v. Sweden, Communication no 301/2006, Views adopted on 9 May 2008, para. 4.5. In addition, the conclusions presented in the report are supported by verifiable facts.

8. The State party refers to: A.H. v. Sweden, Communication No. 265/2005, Views adopted on 16 November 2006; E.R.K. and Y.K. v Sweden, Communications Nos. 270/2005 and 271/2005, Views adopted on 30 April 2007; and E.V.I. v. Sweden, Communication No. 296/2006, Views adopted on 1 May 2007; and Z.K. v. Sweden, Communication No. 301/2006, Views adopted on 9 May 2008. ↩

In accordance with article 22, paragraph 5 (b), of the Convention, the Committee does not consider any communication unless it has ascertained that the complainant has exhausted all available domestic remedies. The Committee notes the State party’s acknowledgment that domestic remedies have been exhausted and thus finds that the complainants have complied with article 22, paragraph 5 (b). 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 and is an abuse of the right of submission given the non-authentic nature of the documents submitted by the complainants to support their claims. 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 considerations alone.

As to E. J.’s alleged involvement in political activities, the Committee notes that although he was a member of the ADP, it does not appear that he was in a leading position, and thus would not attract the particular interest of the Azerbaijani authorities if returned. Nor is there any evidence that he has been involved, while in Sweden, in any activity which would attract the interest of the same authorities four years after he left Azerbaijan. In this regard, the Committee also notes that the activities in which he was alleged to have been involved took place between January 2001 and May 2004 – more than four years ago. It notes further that a number of persons defined by the CoE as political prisoners have been released by the Azerbaijani authorities, following presidential pardons, in particular of the ADP leader himself and that this has not been contested by the complainants.

In the Committee's view, the complainants have failed to adduce any other tangible evidence to demonstrate that E. J. would face a foreseeable, real and personal risk of being subjected to torture if returned to Azerbaijan. For these reasons, and in light of the fact that the other complainants’ case is closely linked to, if not dependent on, that of E. J., the Committee concludes that the other complainants have also failed to substantiate their claim that they would also face a foreseeable, real and personal risk of being subjected to torture upon their return to Azerbaijan. The Committee therefore concludes that their removal to that country would not constitute a breach of article 3 of the Convention. The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, concludes that the complainants’ removal to Azerbaijan by the State party 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.]