Communication No. 30/1995
by: P. M. P. K. (name deleted) [represented
victim: The author
of communication: 14 July 1995
Committee against Torture, established under article 17 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
on 20 November 1995,
Decision on admissibility
author of the communication is a Zairian citizen who entered Sweden
in November 1991 to request asylum. She claims that her return
to Zaire following the dismissal of her application for refugee
status would violate article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
She is represented by counsel.
31 January 1994, the Swedish Board of Immigration refused the
author's application for asylum, noting that the political situation
in Zaire had improved and considering that it was not likely that
the author would be subjected to persecution or severe harassment.
On 13 February 1995, the Aliens Appeal Board confirmed the decision
of the Swedish Board of Immigration. The author then submitted
a "new application" to the Appeal Board, arguing that
the situation in Zaire had not improved, but on 16 March 1995
the Board rejected her application, considering that the circumstances
invoked by the author could not be seen as new evidence.
22 August 1995, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments
and requested the State party not to expel the author while her
communication was under consideration by the Committee.
submission of 16 October 1995, the State party challenges the
admissibility of the communication. It explains that under chapter
2, section 5, of the Aliens Act, an alien who is to be refused
entry or expelled can apply for a residence permit if the application
is based on circumstances that have not previously been examined
in the case and if the enforcement of the decision on refusal
of entry or expulsion will be in conflict with humanitarian requirements.
The State party emphasizes that new circumstances cannot ex officio
be assessed by the immigration authorities, but only following
a so-called "new application". The State party notes
that the medical evidence invoked by the author in support of
her communication has not previously been submitted to the Swedish
immigration authorities, so that neither the Swedish Immigration
Board nor the Aliens Appeal Board has had the opportunity to assess
it. Considering that a "new application" may be lodged
at any time and that the relevant requirements have recently been
relaxed, the State party submits that domestic remedies have not
been exhausted in the present case.
submission of 10 November 1995, counsel claims that a "new
application" under chapter 2, section 5, of the Aliens Act
would not be successful. In this connection, she points out that
an application has to be based on new circumstances not previously
considered and that only 5 per cent of "new applications"
succeed. Since the author's request for asylum was refused on
the basis that the situation in Zaire had improved, she argues
that a "new application" on the basis of the new medical
evidence would be rejected on the same grounds.
considering any claim in a communication, the Committee against
Torture must decide whether or not it is admissible under article
22 of the Convention.
22, paragraph 5 (b), of the Convention precludes the Committee
from considering any communication, unless it has ascertained
that all available domestic remedies have been exhausted; this
rule does not apply if it is established that the application
of domestic remedies has been or would be unreasonably prolonged
or would be unlikely to bring effective relief. In the circumstances
of the instant case, the Committee considers that the Swedish
domestic authorities should have an opportunity to evaluate the
new evidence submitted by the author, before the Committee examines
the communication. Moreover, on the basis of the information available,
the Committee cannot conclude that the available remedy of a "new
application" would be a priori ineffective.
Committee therefore decides:
That the communication is inadmissible;
That this decision shall be communicated to the State party, to
the author and to her counsel.
in English, French, Russian and Spanish, the English text being
the original version.]