by: Jamal Omer Mohamed
victim: The author
communication: 8 February 1996 (initial submission)
decision of admissibility: 14 November 1996
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
on 28 April 1997,
concluded its consideration of communication No. 40/1996, submitted
to the Committee against Torture by Mr. Jamal Omer Mohamed under article
22 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
taken into account all information made available to it by the author
of the communication, his representative and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication is Mr. Mohamed Jamal Omer, an Ethiopian citizen
from Dire Dawa, born in 1970, currently residing in Greece. He claims
to be a victim of a violation by Greece of article 3 of the Convention
as submitted by the author
2.1 The author
states that he was arrested by "kebele" (local administrative)
Regular reference is made to "the kebele" without any
explanation. It would appear that "kebele" stands for "local
representative". officers in Ethiopia in 1988 after having begun
to give lessons in the local mosque in November of that year. He was
accused of "anti-revolutionary" activities and held in detention
for an unspecified period of time.
2.2 At the
beginning of 1989, he was nominated by his peers from school to participate
in a political course of one month in Addis Ababa. The nomination was
approved by the local administrative officers. After having completed
the course, the author was informed that he was to be sent to a remote
area in the country for the purpose of recruiting farmers as soldiers
for the Government forces. The area in question was populated by a majority
of people of Oromo ethnic origin and was said to be a centre for activities
of the Oromo Liberation Front (OLF).
2.3 The author,
as well as other participants in the political course who had been selected
for the mission which was aimed at breaking OLF influence in the area,
considered the task impossible and protested. However, they were sent
to the region under threat of execution. Fighting broke out on their
arrival and the local inhabitants threw stones at them. Local OLF activists
threatened them with death and urged them to leave the area within 48
hours. The author decided to leave the area without further delay and
returned to his home town. He was reported missing by representatives
of the Government. In Dire Dawa he was arrested, on an unspecified date,
by the local administrative officers, and held in detention for an unspecified
period of time, accused of being an OLF collaborator. He states that
he was subjected to torture during the detention.
2.4 In support
of these claims, the author refers to an enclosed document issued by
the Medical Rehabilitation Centre for Torture Victims in Athens on 20
November 1994. According to the report, the author was examined by a
neurologist and an orthopedist, as well as interviewed by a psychologist,
during six sessions in October 1994. The report states that he had been
subjected to various forms of torture and subsequently suffered from
severe headaches, as well as from pains in the right knee and right
foot. Reference is also made to a translation of a report from a hospital
in Athens, dated 1 February 1995, concerning an electroencephalogram.
2.5 As a consequence
of the ill-treatment, the author was taken ill. He had a high temperature
and vomited repeatedly. He was therefore transferred to a hospital in
Dire Dawa. While he was hospitalized there was an exchange of fire in
the town between Government soldiers and OLF activists and the power
was cut off. He managed to escape from the hospital during the confusion
that followed. In this context, he contends that "a security guard
shot my father dead". As Government representatives intensified
the search for him, he decided that he had to flee the country.
2.6 The author
contends that he crossed the border to Somalia in December 1989 and
was held in detention there from 1 January 1990 for five months, accused
of illegal entry. Following his release in Somalia, he states that he
was told by "the United Nations office to register with the police".
However, the police would not let him register as a refugee "because
of the political situation and [his] being a member of the Aderic Tribe".
The author contends that, with the help of a friend in Somalia who provided
him with a passport and air fare, he managed to leave Somalia for Turkey,
on an unspecified date. He states that he was informed by the police
in Turkey that Africans were not allowed to register as refugees and
that, for practical purposes, he was forced by the Turkish police to
cross the border to Greece, on an unspecified date.
2.7 Upon his
arrival in Greece, the author was informed by the Office of the United
Nations High Commissioner for Refugees (UNHCR) that, before registering
with UNHCR as a refugee, he must first register with the Greek police.
When he attempted to register with the police, he was told that he had
first to obtain from the International Catholic Migration Commission
(ICMC) a document certifying his country of origin. However, since 1991
the ICMC had ceased to issue such documents. Without this document,
the Greek Ministry of Public Order, in a decision dated 27 October 1992,
refused to register him, as did the Greek Council for Refugees and UNHCR.
The author claims that he was requested, when entering Greece, to indicate
a third country to which he would not raise any objections to being
deported and that he then mentioned Canada. His request for asylum in
Greece was later rejected "because, after a two-year illegal stay
in Greece, his application is made to facilitate his transfer to Canada".
3.1 The author
claims that his return to Ethiopia would constitute a violation by Greece
of article 3 of the Convention against Torture. The author fears that,
although he is not currently under an expulsion order, he is at risk
of being deported at any time in view of the fact that he has no asylum,
residence or work permit.
3.2 In support
of his argument that he fears torture upon return to Ethiopia, the author
refers to an Amnesty International report of April 1995 regarding the
human rights situation in Ethiopia and, in particular, to the case of
a certain Hussein, from Dire Dawa, who was accused of being an OLF collaborator
in 1993, held in detention and allegedly subjected to torture. He also
refers to the case of a Mr. Temteme Addisalem Mengistu, who returned
to Ethiopia from Greece after obtaining assurances from the Greek Council
for Refugees that his safety was guaranteed, and who was immediately
arrested upon arrival, in October 1994.
4. On 28 February
1996, the Committee, through its Special Rapporteur, transmitted the
communication to the State party for comments on admissibility.
5.1 By its
submission of 19 April 1996, the State party challenges the admissibility
of the complaint. It notes that, in its view, there are no grounds for
a complaint under article 3 of the Convention against Torture, given
that the author has not been expelled from Greece, nor has an order
for his expulsion been issued. It further points out that it is of the
view that the author has not substantiated that he is in any danger
of being tortured should he return to Ethiopia.
5.2 As regards
domestic procedures, the State party acknowledges that the author's
application for asylum was dismissed on 27 October 1992 as "manifestly
abusive" by the Minister of Public Order, on the basis that his
claim could not be founded on the 1951 Convention relating to the Status
of Refugees,4 and that no appeal from this decision was available.
On humanitarian grounds, the Minister did not order the expulsion of
the author but instead laid down a period of one month within which
the author was to leave Greece for a country of his choice.
5.3 The State
party notes that on 3 January 1991 the author entered Greece secretly
from Turkey, assisted by an illegal migrant traffic network, and did
not apply for asylum at that time. Three months later, he registered
with the migration programme with a view to emigrating to Canada. A
year and a half later, on 3 September 1992, the author applied for asylum
in Greece on the pretext that he opposed his country's regime. However,
in this application he made no mention of the change in Government in
his home country, despite the fact that the change had occurred since
his departure from Ethiopia.
by the author
6.1 In his
comments on the State party's submission, the author concedes that he
has not been deported but states that, as a victim of torture and a
political refugee, he has a right to asylum. He expresses the fear that
he could be deported at any time.
6.2 The author
explains, reiterating the claims made earlier (see para. 2.7 above),
that he was not able to apply immediately for asylum because of "bureaucratic
circumstances". He further explains that upon entry to Greece,
he had no plans to emigrate to Canada. However, following his request
for asylum in Greece, he was told that he could not stay in Greece and
would be deported unless he transferred to a third country of his choice.
Thus he was obliged to name a third country and named Canada. He denies
registering for the migration programme to Canada after three months
6.3 The author
reiterates that he escaped from his own country and was then deported
from Turkey, being left at the Greek border. He did not attempt to enter
Greece in secret or seek the assistance of an "illegal migrant
traffic network". With regard to the situation in his home country,
he submits that he would be in grave danger if returned to Ethiopia,
citing an Amnesty International report of April 1995 on the human rights
violations of the transitional Government there.
7.1 At its
seventeenth session, the Committee considered the admissibility of the
communication. It ascertained, as it is required to do under article
22, paragraph 5 (a), of the Convention, that the same matter had not
been and was not being examined under another procedure of international
investigation or settlement. The Committee was further of the opinion
that all domestic remedies available to the author had been exhausted,
as required by article 22, paragraph 5 (b). The Committee found that
no other obstacles to the admissibility of the communication existed.
7.2 In order
to facilitate its examination of the merits of the communication, the
Committee requested the author to provide more precise and detailed
information to substantiate his fear that he personally would be in
danger of being subjected to torture should he return to Ethiopia at
that time. Further, the Committee requested the State party to provide
information on the possible consequences for the author of non-compliance
with the request of the Minister of Public Order that he leave the country.
on 14 November 1996, the Committee decided that the communication was
9.1 By his
submission of 28 January 1997, the author reiterates that he was in
prison from 5 November to 6 December 1988 and again from 28 June 1989
onwards. The second time he was accused of collaborating with the OLF.
He states that this accusation still stands, since the OLF is also in
opposition to the current Government. He adds that the OLF accuses him
of being a Government spy.
9.2 For the
above reasons, he states that he would be in serious danger if he were
to return to Ethiopia. He refers to an Amnesty International report
of July 1996 which shows that the human rights situation in Ethiopia
is still unacceptable.
10.1 By its
submission of 8 March 1997, the State party reiterates that the author
has not been expelled from the country, and clarifies that he remains
in Greece for humanitarian reasons. The State party thus argues that
article 3 of the Convention has not been violated.
10.2 The State
party acknowledges that, at the time, no appeal was available to an
asylum seeker whose request was rejected as abusive, but states that
the non-availability of an appeal as such does not constitute a violation
of the Convention. The State party adds that the law has since been
10.3 The State
party further points out that an individual always has the possibility
of lodging an appeal with the Council of State concerning the legality
of any administrative decision.
and proceedings before the Committee
11.1 The Committee
has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22,
paragraph 4, of the Convention.
article 3 of the Convention, the Committee is required to decide whether
an expulsion, return or extradition of an individual would breach the
obligation of a State party not to expose that individual to the danger
of being subjected to torture. The Committee cannot determine whether
or not the claimant is entitled to asylum under the national laws of
a country, or can invoke the protection of the 1951 Convention relating
to the Status of Refugees.
11.3 In the
instant case, the Committee notes that the State party has not ordered
the author's expulsion, return or extradition to Ethiopia and has stated
that the author remains in Greece for humanitarian reasons. It also
appears from the State party's submission that, were the authorities
to order his deportation at a later stage, the author would have an
appeal possibility against such decision. The Committee is therefore
of the opinion that the facts before it do not show any violation of
the Convention by Greece.
12. The Committee
against Torture, acting under article 22, paragraph 7, of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
is of the view that the facts as found by the Committee do not reveal
a breach of article 3 of the Convention.
[Done in English,
French, Russian and Spanish, the English text being the original version.]