by: H. W. A. (represented by counsel)
victim: The author
communication: 4 April 1996
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 20 May 1998,
Decision on admissibility
1. The author
of the communication is H. W. A., alias N. B. M., alias H. A., a Syrian
citizen. He claims that his forced return to the Syrian Arab Republic
would constitute a violation by Switzerland of article 3 of the Convention.
He is represented by counsel.
2.1 The author
claims that he left his country at the age of 13 to join the Palestine
Liberation Organization (PLO) in Lebanon. In 1984, he was sent by
the PLO for special military training to Iraq, where he stayed until
1988. Thereafter he was sent to Libya. Seeing this assignment as a
demotion, he left the PLO. He was subsequently enlisted for a special
mission, namely an attack on a hotel in Taba (Egypt) used by Israeli
soldiers. After starting out on his mission, he decided to abandon
it for safety reasons. Fearing reprisals in the Libyan Arab Jamahiriya
because of his defection, he decided to seek refuge in Europe.
entering Switzerland, the author entered France, where he requested
asylum under a false name. Following the rejection of that request
in March 1990, he applied for asylum in Switzerland under his real
name on 20 May 1990. The Federal Refugee Office (Office fédéral des
réfugiés, ODR) rejected that request on 19 January 1993, and the Swiss
Asylum Appeal Board (Commission suisse de recours en matière d'asile,
CRA) rejected his appeal on 15 February 1995. His application for
review was rejected on 26 January 1996.
3.1 By a
letter dated 17 May 1996, the Committee transmitted the communication
to the State Party for its comments on its admissibility.
3.2 It appears
from a letter from the author dated 22 October 1996 that he is now
living in Ireland, where he has filed a request for asylum.
3.3 By a
letter dated 17 April 1998, the State party requested the Committee
to declare the communication inadmissible on the ground that it had
become irrelevant. The State party observed that, after being informed
of the deposit of the communication with the Committee, ODR decided
on 10 May 1996 not to expel the author from Switzerland. The author
nonetheless left Switzerland, arriving on 3 July 1996 in Ireland and
filing an application for asylum there. Furthermore, he has authorized
the Irish authorities to contact the competent Swiss authorities to
obtain from them documents he needs in connection with the new asylum
proceedings. The State party argues that it can therefore be considered
that it is in Ireland that the author now wishes to obtain asylum.
that the author left Switzerland nearly two years ago and has since
been involved in formalities aimed at obtaining asylum in another
country, the State party believes that the question of incompatibility
of the ODR decision of 19 January 1993 to expel the author from Switzerland
with article 3 of the Convention is of no practical or topical interest.
3.5 In his
comments of 8 May 1998, the author's Swiss counsel points out that,
although the author was indeed informed that ODR authorized him to
remain in Switzerland, the formal notification of the decision indicated
that the authorization was valid only until 30 June 1996. He explains
that, in view of the absence of any request pursuant to rule 108,
paragraph 9, of the Committee's rules of procedure, the author panicked
and left Switzerland. The author had alleged that the cantonal police
had orally warned him that, unless he left Switzerland within two
weeks, they would take him to the Consulate General of the Syrian
3.6 The counsel's
view is that, since the author could not legally have remained in
Switzerland to await the outcome of the proceedings before the Committee,
the State Party cannot reasonably maintain that those proceedings
have become irrelevant because the author filed an application for
asylum in Ireland in July 1996. The counsel observes that that application
is still pending and that the question of the incompatibility of the
author's forced return with article 3 of the Convention is therefore
very definitely of practical and topical interest. He states that,
because of an article in the press, the author no longer feels safe
in Dublin and would like to return to Switzerland.
and proceedings before the Committee
considering any of the allegations in a communication, the Committee
against Torture must decide whether or not the communication is admissible
under article 22 of the Convention.
to article 22, paragraph 1, of the Convention, the Committee may consider
a communication from an individual who claims to be a victim of a
State party's violation of a provision of the Convention, providing
the individual is subject to that State's jurisdiction and the State
has declared that it recognizes the Committee's competence under article
4.3 The Committee
notes that the author is no longer in Switzerland and that he has
applied for asylum in Ireland, where has been given a residence permit
pending the outcome of the asylum proceedings. Article 3 of the Convention
prohibits return (refoulement) of a person by a State party
to another State where there are substantial grounds for believing
that the individual may be subjected to torture. In the case in question,
the author, being legally present in the territory of another State,
cannot be returned by Switzerland; consequently, article 3 of the
Convention does not apply. Consideration of the communication having
become irrelevant, the Committee finds the communication inadmissible.
the Committee decides:
the communication is inadmissible;
this decision shall be communicated to the applicant's counsel and
to the State party.
French (original version) and translated into English, Russian and