FECL 45 (July 1996):
The United Nations Committee against Torture (CAT) has found in two cases concerning rejected asylum seekers in Sweden and Switzerland, that their forcible return would constitute a violation of the UN Convention against Torture. The CAT decisions highlight two important principles, increasingly ignored in asylum examination procedures throughout Europe: inconsistencies in an asylum seekers story do not automatically indicate that an applicant is not trustworthy; and, asylum seekers cannot be expected to present irrefutable evidence of their persecution. What counts is the "general veracity" of a claim.
The Swedish case
The first case concerned a Zairian women, Ms M., who faced forcible return to her home country after her application for asylum in Sweden had been finally rejected.
In late 1990, Ms M. and her husband, both activists in the Zairian opposition party UDPS, were arrested by Zairian security forces. Ms M. was raped in her home in front of her children and then taken to Makal prison in Kinshasa, where she was detained for one year without trial. In prison, Ms M. shared a cell of three by six metres with seven other female inmates. Ms M. stated that guards came into the cell every morning and forced the women to dance, beat them, and sometimes raped them. Ms M. was repeatedly raped and subjected to other forms of serious torture.
In October 1991, she managed to escape from prison with the assistance of a bribed supervisor. She travelled to Sweden with a borrowed passport and immediately applied for asylum.
Immigration authorities: persecution "unlikely"
Her repeated applications and appeals were turned down and her deportation to Zaire ordered by the Swedish immigration authorities on the grounds that the political situation in Zaire had improved and that it was no longer "likely" that Ms M. would be subjected to persecution or severe harassment because of her past activities for the UDPS. The immigration authorities further questioned the circumstances surrounding Ms M.s release from prison and her leaving Zaire. Another new application by Ms M., on the basis of new forensic medical evidence, prepared by the Centre for Torture and Trauma Survivors in Stockholm was also rejected. The Aliens Appeal Board judged that the information now submitted could easily have been submitted earlier, thereby decreasing the trustworthiness of Ms M.s claim. In order to avoid deportation, Ms M. went into hiding.
UN Commission on Human Rights: torture common in Zaire
In her complaint to the CAT, Ms M referred to two UN documents: a 1995 report of the UN Commission on Human Rights Special Rapporteur on Zaire, where it is reported that torture is common in Zaire and that female prisoners are often raped; and, the UNHCRs "Background paper on Zairian refugees and asylum seekers" of March 1995, where it is mentioned that the Security Police has shown a particular interest in returned asylum seekers, who are being subjected to long sessions of interrogation. Moreover, Ms M. presented a letter of support from the UDPS exile organisation in Sweden and stated that she had continued her political activities as a UDPS member in Sweden.
Sweden points to "inconsistencies" in Ms Ms story
In its comment on the complaint, the State party (Sweden) acknowledged the deplorable situation with regard to human rights in Zaire, despite alleged improvements since 1994. The comment particularly referred to a report of the Zairian human rights organisation, La Voix des sans Voix, where it is concluded that it could not be confirmed a priori that expelled Zairian asylum seekers are in danger in Zaire, but that each case deserved to be examined on its own merits.
As to the merits of the complaint, the State party referred to the criteria established by the CAT, according to which a person must personally be at risk of being subjected to torture, and that such torture must be a necessary and foreseeable consequence of the return of a person to his/her country.
The State party further argued that Ms M.s complaint was inadmissible as being incompatible with the provisions of the Convention, due to its "lacking necessary substantiation". It pointed to "inconsistencies" in Ms M.s account of the exact number of times she had been raped. According to the State party, these inconsistencies impact significantly on the veracity of the complainants story.
The comments of Ms Ms legal counsellor
In her comments on the submission of the State party, Ms M.s legal counsellor pointed out that her statements about her sufferings were initially sparse and casual, and were only elaborated later, with the passage of time. However the Counsel emphasised that Ms M.s story had remained "unchanged, coherent and plausible" throughout and she further referred to articles in medical journals explaining the psychological blockage among torture victims preventing them from telling their full story upon arrival in a safe country.
CAT: Complete accuracy cannot be expected by victims of torture
In its findings, the CAT considered that Ms M.s "political affiliation and activities, her history of detention and torture, should be taken into account when determining whether she would be in danger of being subjected to torture upon her return", and further, that "complete accuracy is seldom to be expected by victims of torture and that such inconsistencies as may exist in the authors [Ms M.s] presentation of the facts are not material and do not raise doubts about the general veracity of the authors claims". Finally, the CAT held that deportees with a political profile, and, in particular, members of the UDPS, continue to be targeted for political persecution, detention and ill-treatment in Zaire.
Ms M.s forcible return would violate the Convention against Torture
As a consequence, the CAT concluded that "substantial grounds" exist for believing that Ms M. would be in danger of being subjected to torture if returned to Zaire, that her return would constitute a violation of Article 3 of the UN Convention against Torture and Other Cruel, Inhuman or degrading Treatment or Punishment, and that Sweden therefore "has an obligation to refrain from forcibly returning [Ms M.] to Zaire".
Commenting on the judgement, the Swedish minister responsible of asylum, Pierre Schori, said: "This is serious. The decision underlines what careful assessments must be made at our immigration authorities... The [CATs] decision further emphasises the importance of a particularly diligent and careful handling of cases involving allegations of torture. I assume that this is what happens".
In the view of Christa Nyblom, Ms M.s legal counsellor, the CATs judgement amounts to "a reproof of Swedish authorities current handling of asylum cases". She regards the Swedish Aliens Appeal Boards rejection of Ms M.s application as "a typical example of stereotyped sifting of evidence" by asylum authorities. "By questioning the general trustworthiness of asylum seekers with stereotypes such as having no passport or an asylum request made some days after the actual date of arrival, very serious grounds for political asylum can be brushed aside", Ms Nyblom concluded.
The Swiss case
In another decision, the CAT objected to the forcible return to Turkey of an asylum seeker, ordered by the Swiss asylum authorities. The CAT did not accept the Swiss authorities line of reasoning, according to which Mr. A., a Kurdish Turk, was not at risk of being tortured in Turkey, since this country had signed the UN Convention against Torture, and since he was not on the wanted list of the Turkish police. The CAT noted that the complainants home in Turkey was put under police surveillance during his absence from the country and that his brother had been arrested and interrogated by police on several occasions. Just as in the Swedish case, the CAT further pointed out that certain inconsistencies in Mr A.s story constituted no ground justifying his deportation.
Sources: UN Committee against Torture, 16th session, Document CAT/C/16/D/41/1996, Geneva, 13.5.96; Svenska Dagbladet, 4.6.96; Neue Zürcher Zeitung, 12.6.96.