On 3 July 2007, the Rapporteur for new complaints and interim measures requested the State party not to deport the complainant to Bangladesh while his case is under consideration by the Committee, in accordance with rule 108, paragraph 1, of the Committee’s rules of procedures. On the same day, the State party acceded to this request.
The facts as presented by the complainant
In addition, the complainant submitted medical certificates by Dr. P. K., according to which he was treated for mental illness since mid-November 2005. Dr. P. K. concluded that the complainant’s history of past ill-treatment and present mental health problems, including sleep disturbances, recurring nightmares, intrusive memories and anxiety, especially related to events reminding him of the trauma, fulfilled the criteria of Post Traumatic Stress Disorder (PTSD).
The complaint
The complainant claims that his deportation to Bangladesh would constitute a violation by Sweden of articles 3 and 16 of the Convention. He fears assassination by BNP supporters if returned to Bangladesh. He also fears being arrested and tortured by the police because of the accusations against him. He adds that the prison conditions in the country amount to cruel, inhuman or degrading treatment.
State party’s observations on the admissibility and the merits
On 11 September 2008, the complainant submitted that he did not have any comments on the State party’s observations.
Consideration of the merits
The issue before the Committee is whether the complainants’ removal to Bangladesh 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 or she 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 Bangladesh, 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.
The Committee recalls its General Comment No.1 on article 3,16 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, 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.17 Furthermore, the Committee observes that considerable weight will be given, in exercising the Committee’s jurisdiction pursuant to article 3 of the Convention, to findings of facts that are made by organs of the State party concerned; but that it is not bound by such findings and instead has the power, provided by article 22, paragraph 4, of the Convention, of free assessment of the facts based upon the full set of circumstances in every case.18
- General Comment No. 1: Implementation of article 3 of the Convention in the context of article 22 (1996), paras. 6 and 7, U.N. Doc. HRI/GEN/1/Rev.8., p. 347. ↩
- Communication No. 203/2002, A.R. v. The Netherlands, Views adopted on 21 November 2003, paragraph 7.3. ↩
- A/53/44, annex IX, CAT General Comment No. 1, paragraph 9. ↩
In the present case, the Committee observes that the main reasons for which the complainant fears a personal risk of torture if returned to Bangladesh are that he was previously subjected to torture for his membership in the Awami League by BNP supporters, and that he risks imprisonment and torture by the police upon return to Bangladesh because of his alleged homicide charges. In addition, the complainant states that, if convicted, he risks being subjected to inhuman or degrading treatment in prison.
As to his claims of past torture, the Committee notes that the assault of 1 October 2001, the kidnapping and torture of 20 October 2001 and the arrest and torture that took place in October/November 2002 allegedly involved BNP supporters. In this regard, the Committee recalls that the State party's obligation to refrain from forcibly returning a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture is directly linked to the definition of torture as found in article 1 of the Convention. For the purposes of the Convention, according to article 1, "the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". The Committee recalls its jurisprudence that the issue whether the State party has an obligation to refrain from expelling a person who might risk pain or suffering inflicted by a non-governmental entity, without the consent or acquiescence of the Government, falls outside the scope of article 3 of the Convention.19
- See, inter alia, G.R.B. v. Sweden, loc. cit; S.S. v. The Netherlands, op.cit., para. 6.4; Communication No. 138/1999, M.P.S. v. Australia, Views adopted 30 April 2002, para. 7.4. ↩
The Committee observes that the October/November 2002 events, allegedly involved torture by BNP supporters in collaboration with the State party’s police. Even if the Committee were to accept the claim that the complainant was subjected to torture in the past, the question is whether he currently runs a risk of torture if returned to Bangladesh. It does not necessarily follow that, six years after the alleged events occurred, he would still be at risk of being subjected to torture if returned to Bangladesh in the near future.20 In this regard, the Committee notes that, other than being wanted for alleged homicide charges, the complainant has failed to provide information on why he would be of interest to the local authorities.
- S.S.S. v Canada, op.cit. and Communication No. 126/1999, Haad v. Switzerland, Views of 10 May 2000. ↩
In relation to the charges which the complainant contends were filed against him, the Committee notes the State party’s submission that the charge sheets, police reports and letters submitted by the complainant are not authentic. It also notes the State party’s contention that the complainant has not been sentenced, prosecuted for or accused of any of the crimes alleged by him. The complainant has not contested these observations, nor has he submitted any evidence to the contrary, even though he was given the opportunity to do so. In this regard, the Committee recalls its jurisprudence that it is normally for the complainant to present an arguable case and that the risk of torture must be assessed on grounds that go beyond mere theory and suspicion.21
- General Comment No. 1, op. cit, para. 6. See also Communication No. 256/2004, M.Z. v. Sweden, Views adopted on 12 May 2006, para. 9.3; Communication No. 214/2002, M.A.K. v. Germany, Views adopted on 12 May 2004, para. 13.5; and Communication No. 150/1999, S.L. v. Sweden, op.cit, para. 6.3. ↩
In view of the above, the Committee does not consider it necessary to examine the complainant’s allegation that he risks inhuman or degrading treatment if imprisoned in a Bangladeshi prison on account of the above-mentioned charges.
On the basis of the information submitted, the Committee considers that the complainant has not provided sufficient evidence that would allow it to consider that he faces a foreseeable, real and personal risk of being tortured if he is expelled to his country of origin.
The Committee against Torture, acting under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, therefore concludes that the return of the complainant to Bangladesh would not constitute a breach of article 3 of the Convention by the State party. [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.]