by: A. (name withheld)
victim: The author
party: The Netherlands
communication: 23 October 1997
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 13 November 1998,
concluded its consideration of communication No. 88/1997, submitted
to the Committee 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, her counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
1. The author
of the communication is A., a Tunisian citizen born in 1972, currently
residing in the Netherlands, where he is seeking asylum. He claims
that his forced return to Tunisia would constitute a violation by
the Netherlands of article 3 of the Convention against Torture. He
is represented by counsel.
as presented by the author
reports that he has had problems with the Tunisian authorities since
he was a student because he used to criticize the Government at school.
Because of that and an argument he had with his headmaster about a
private issue he was dismissed from school in 1988. In July 1989 he
travelled to France with a temporary visa and worked there illegally.
He had the intention to study in France but after eight months was
caught and sent back to Tunisia. Three months later he travelled again
to France but he was again caught 13 days after his arrival and sent
his return to Tunisia the author started private lessons with a teacher
who happened to be a prominent member of the illegal Al-Nahda
movement although he never told him that. On several occasions he
was picked up by the police and held for a few days during which he
was interrogated about his teacher and beaten. At a certain point
an arrest warrant was issued against the teacher, who asked the author
for help in leaving the country. The author knew the border region
well because his family came from that part of the country. That is
why he was able to help the teacher cross the border. In May 1992
the author was arrested. For two weeks he was beaten daily and held
in a sort of chicken coop at the police station. That treatment left
him with scars on his back and three broken toes. At the end of those
two weeks he was sent for military service which he had not yet performed
despite having been called up in 1991. As a punishment he was sent
to Ghafsa, an army centre in the desert, where he was again subjected
to ill-treatment, such as being kept for several days in an underground
cell. In August 1992 he managed to escape and left the country immediately
through a small border post.
2.3 The author
stayed in Algeria for a day and a half and then spent a month and
a half in Morocco, where he destroyed his passport. He then went to
Ceuta where he stayed for a month and a half and to the Spanish mainland,
where he stayed until December 1993. Then he went to Paris where he
stayed until March 1994. All these stays were illegal. He arrived
in the Netherlands on 21 March 1994 where he asked for asylum and
stated that he was an Iraqi national. On 20 September 1994, during
an interview with immigration officials, he told them that his name
was A. and that he had Algerian nationality. On 14 December 1995 the
Secretary of Justice rejected his refugee claim and on 19 June 1996
his appeal was turned down by the President of the Regional Court
in Amsterdam. On 15 July 1996, his application for review of the decision
of 14 December 1995 was rejected. On 17 January 1997, his appeal against
the rejection was dismissed by the President of the Regional Court
2.4 On 10
February 1997, the author was arrested by the police in Haarlem during
an inspection of the company where he worked. This time he informed
the police that he was of Tunisian nationality, but refused to give
his real name unless he was given assurances that he would not be
sent back to Tunisia. While in detention he filed another request
for asylum that was rejected by the Secretary of Justice on 28 February
1997. On 5 March 1997 the author appealed this decision to the President
of the Regional Court in Hertogenbosch. The appeal was turned down
on 22 October 1997 and the expulsion was planned for 25 October 1997.
states that the hearing into the author's claim before the court on
22 October 1997 took place without his and the author's presence and
that a request for postponement awaiting relevant medical evidence
which would only be available on 23 October was rejected by the court.
The reason for the haste was that the Tunisian embassy had issued
a laissez-passer for the author which would only be valid for a few
provides the report of a follow-up interview held on 24 February 1997
between the author and the Immigration and Naturalization Department
in which the author acknowledged that his real name was not A. and
explained that he would only reveal his real name and provide proof
of his identity if he was given assurances that he would not be sent
back to Tunisia. He also said that his father had experienced problems
when he tried to obtain an extract from the birth register after his
departure. He was questioned by officials of the municipality and
later by the police who asked him for the author's whereabouts.
indicates that according to reports by Amnesty International there
is a consistent pattern of gross human rights violations in Tunisia.
He also provides copy of a letter sent by the United Nations High
Commissioner for Refugees on 4 March 1997 to a colleague of his in
connection with the asylum request of another Tunisian in which the
following is stated: "We can confirm that the mere fact of being perceived
by the Tunisian authorities as a member or supporter or even having
just simple contacts with the Al-Nadha movement could lead
to persecution. Moreover, we are in fact aware that some individuals
have been interrogated and even harassed by the Tunisian police on
the mere ground of having received letters from Tunisians abroad who
are considered by the Tunisian authorities to be members of Al-Nadha.
Therefore, claims of persecution from asylum seekers of the first
mentioned category may well be of a nature that would entitle them
to be recognized as refugees."
3.4 The author
claims that if he is returned to Tunisia he will be arrested for having
deserted and that his desertion would be construed by the Tunisian
authorities as evidence of his links with the Al-Nahda movement.
In view of his experience during his previous detentions he believes
he will be subjected to torture again.
4.1 On 24
October 1997 the Committee, acting through its Special Rapporteur
for new communications, transmitted the communication to the State
party for comments and requested the State party not to expel or deport
the author to Tunisia while his communication was under consideration
by the Committee.
4.2 In a
submission dated 23 December 1997 the State party indicates that the
author applied for asylum on 24 March 1994, after he had been discovered
living illegally in the Netherlands under the name of M.A.O., born
in Iraq. Later on, he declared to the authorities that he was in fact
an Algerian national and that his name was A. His application was
rejected by decision of 14 December 1995. He then lodged an objection
against this decision and asked the President of the District Court
for an interim injunction to prevent his expulsion. In the objection
he claimed to have Tunisian nationality and to live in fear of the
Tunisian authorities. The application for an interim injunction was
dismissed on 19 July 1996 and the author's objection was held to be
unfounded by decision of 15 July 1996. An appeal against this decision
was declared to be unfounded by judgement of 17 January 1997.
4.3 On 10
February 1997 the author was detained following a check for illegal
labour in a company and placed in custody pending expulsion. On 12
February 1997 he submitted a second application for asylum, which
was rejected by decision of 28 February 1997. This decision was delivered
to the author on 4 March 1997 and, at the same time, he was notified
that he would have to leave the Netherlands immediately.
4.4 On 5
March 1997 the author lodged an objection against the negative decision
and filed an appeal with the District Court. He also applied to the
President of the District Court for an interim injunction to prevent
his expulsion. This request was again refused, and the objection and
appeal were again declared to be ill-founded. Following his communication
to the Committee and the Committee's request under rule 108, paragraph
9, of its rules of procedure the author was released from custody
on 11 November 1997 and his expulsion suspended.
4.5 The State
party considers that the author has exhausted all domestic remedies
and, not being aware of any other grounds for inadmissibility, has
no objection to the admissibility of the communication.
4.6 As for
the merits of the case, the State party argues that in the proceedings
that followed his first request for asylum the author stated that
he had previously lied about his nationality and that he was Algerian.
He explained that in 1989 he had fallen in love with the daughter
of his school's headmaster. The latter did not accept the liaison
and in the course of an argument the author destroyed some property.
As a result he was detained in a youth detention centre for three
months. After his release he went to France but the French authorities
deported him in 1990.
4.7 The author
stated that he had been called up for military service in 1992 but
failed to comply because of a lung condition. As a result he was arrested
in 1993. His request for exemption on medical grounds was denied.
Three months later he deserted and stayed with a friend until he left
for Italy on 23 November 1993. He stayed in Italy for two and a half
months before travelling by train to the Netherlands.
4.8 In the
additional grounds accompanying the objection of 4 April 1996 the
author stated that he in fact came from Tunisia where he had had problems
with the authorities because of his ties with a teacher who was a
fundamentalist and a supporter of the Al-Nahda party. He claimed
that he had been arrested, questioned and beaten on several occasions
and accused of disseminating fundamentalist pamphlets.
4.9 In the
autumn of 1992, after having helped the teacher to escape to Algeria,
he was arrested and questioned for nine days concerning the latter's
whereabouts. He also stated that he had been ill-treated: his feet
were beaten with a stick, breaking three of his toes, and he remained
confined in a chicken coop. When he reported back one month after
his release he was informed that he would be prosecuted and brought
4.10 He also
stated that he had heard from his father that friends in similar circumstances
had been sentenced to three years of imprisonment and that he himself
had been sentenced to 15 months for desertion. The author expects
to be punished for his desertion when he returns to his country.
State party argues that the general situation in Tunisia is not such
that asylum seekers from that country can automatically be regarded
as refugees and that the author should be able to argue plausibly
that certain facts and circumstances exist that objectively justify
his fear of persecution within the meaning of the law relating to
author's individual account is above all implausible. He has made
conflicting statements on a number of points, including his nationality,
the reasons for his journey to the Netherlands, the route by which
he travelled there and his arrests in Tunisia. Furthermore, during
the preparations for his expulsion to Tunisia it was established on
the basis of fingerprints that he is known to the Tunisian authorities
under the name of M. The inconsistencies in the author's statements
are of a substantive nature and indeed raise doubts about the general
veracity of his claims.
author has at no time been politically active, nor has he put himself
in the public eye as such in any other way. During the proceedings
he stated that he had no contact with the Al-Nahda party. He
had problems solely because he had contacts with a teacher who was
a member and had helped him to flee the country. Even if it is true
that the author did help that person, he has not convincingly shown
that he experienced problems with the Tunisian authorities as a result
and that he was held in detention for nine days. Nor has the author
argued convincingly that he is to be prosecuted and brought to trial.
Even if this were true, the fact that the author was merely told to
report back a month after his release certainly does not suggest that
the Tunisian authorities consider him as a serious opponent.
author has also argued that he had been found guilty of desertion.
The State party does not consider this plausible, because it is based
solely on a statement made by the author's father and is not supported
by any documentary proof. The State party does not believe, in any
case, that he deserted on the basis of any political or religious
conviction. It is not plausible that the author would experience problems
upon returning to his country because of his desertion, since he cannot
be regarded as a dissident. It has not been convincingly argued that
any punishment imposed for refusal to perform military service will
be disproportionately severe or that the author will be subjected
to discriminatory persecution instead of an ordinary punishment.
State party contends that whenever an asylum seeker states that he
has been ill-treated or tortured the Immigration and Naturalization
Service asks the Medical Assessment Section of the Ministry of Justice
to give an opinion. The doctors attached to this section can either
examine the person concerned themselves or seek the opinion of a medical
practitioner who has treated him. Given the limited capacity of this
section, however, asylum cases are only submitted to it for assessment
when there are good reasons to subject the individual concerned to
further examination in the interest of assessing his or her request
for asylum. Aside from this, the individual concerned or his legal
representative can always consult a medical practitioner independently.
The latter can then supply a medical certificate stating that certain
scars could have been caused by the alleged ill-treatment for use
in the proceedings and the assessment of the request for asylum.
4.16 In the
present case the author did not indicate that he had psychological
problems until a letter of 17 October 1997, i.e. three and a half
years after his arrival in the Netherlands. During the proceedings
concerning his first asylum request he never mentioned having had
4.17 In connection
with the author's alleged medical problems, the State party observes
that he has not submitted a single medical document. His claims about
certain scars were too insubstantial to prompt a medical examination.
Even if it is assumed that the author is indeed experiencing psychological
problems, the Aliens Advisory Office held, in its report on this case
dated 23 October 1997, that, given the available information on the
opportunities for obtaining psychiatric treatment in Tunisia, there
is no need for the author to remain in the Netherlands for the purpose
of receiving psychiatric treatment.
State party further contends that, according to sources such as Amnesty
International and the UNHCR, supporters of the Al-Nahda party
risk being subjected to torture or inhuman treatment in Tunisian prisons.
For this reason it exercises particular care in decisions on requests
for asylum received by members of this group. It has been established,
however, that the author is not a supporter of the Al-Nahda
party. Moreover, he has failed to make a convincing case for his assertion
that because of his ties with supporters of this party he risks being
tortured in prison. In any case, the author has failed to argue plausibly
that on the basis of his ethnic background, his alleged political
affiliation and his history of detention he would be in danger of
being subjected to torture upon his return. The State party is therefore
of the opinion that the communication is ill-founded.
5.1 In his
comments on the observations made by the State party, counsel points
out that the State party did not include in its submission to the
Committee the information provided by the author in his follow-up
interview with the immigration authorities where he acknowledged having
lied about his identity and nationality and explained his reasons
for having done so. The inconsistencies referred to by the State party
were explained in that interview, a report of which has been provided
to the Committee. Counsel also refers to previous jurisprudence in
which the Committee noted that some of the author's claims and corroborating
evidence had been submitted only after the refugee claim had been
refused by the refugee board and deportation procedures had been initiated
and concluded that this behaviour was not uncommon among victims of
respect to the different statements about his nationality, the author
explained that during his first interviews he was too afraid to immediately
give his correct country of origin and name in view of the fact that
Tunisia is a popular tourist destination and for that reason Tunisians
are not granted asylum in Europe. In any case the Tunisian Embassy
has confirmed that the author is indeed a Tunisian citizen.
also contends that the court tried the author's case in great haste
in order not to allow a laissez-passer issued by the Tunisian Embassy
for a few days to expire. As a result the author and his counsel had
no possibility to provide the court with useful information in support
of the author's claim.
stresses that the author was tortured and kept for 15 days (not 9
as indicated in the State party's submission) in a chicken coop (a
wooden cage especially designed to lock people up) at police headquarters
at Kaf. The State party barely mentions the fact that his toes were
broken and he has scars on his back as a result of torture. The author
could have provided many details about the places in which he was
held and those details could have been verified by the Dutch authorities,
for example the fact that soldiers sent to Ghafsa are mainly those
considered to be opponents of the Government and that they are treated
completely differently from soldiers in any other barracks. The report
on the follow-up interview shows, however, that the authorities never
asked for such details and that those provided by the author were
ignored, as were the report of Amnesty International and the letter
from UNHCR referred to above. Counsel further argues that in the period
1990-1992 the author's sister was arrested, convicted and held in
prison for six months because she was openly sympathising with Al-Nahda.
respect to the medical issues, counsel argues against the State party's
assertion that the author did not submit a single medical document.
The authorities had received a letter (copy of which is provided to
the Committee) dated 20 October 1997 from a social worker who has
been in close contact with the author since 1995 and reports serious
mental and physical difficulties as a result of torture and the fear
of being sent back to Tunisia. The letter indicates that the author
suffered from sleeping disorders. Periods of sleeplessness alternated
with periods of troubled sleep during which he had recurrent nightmares
in which he was arrested and relived his experiences of being maltreated.
He also went through periods of depression and lived in constant fear
of having to return to Tunisia and being arrested and tortured again.
His physical condition during the day was characterized by continuous
tension which led to headaches, stomach aches and back complaints.
He also had respiratory difficulties caused by a medical disorder
of the lungs. According to the social worker the author had told him
that he had been tortured following his contacts with a politically
active member of the Al-Nahda party. This fact together with
his desertion from the army were considered offences by the Tunisian
authorities. The author also described to the social worker the kind
of treatment to which he had been subjected and showed him the scars
on his back. In his view, the fact that the author first gave two
other identities was the result of lack of trust in the authorities
and his fear of not being taken seriously. The social worker also
stated that in view of his health problems he had referred the author
to a Riagg physician from whom he had not received much assistance.
In the counsel's view that letter shows that the State party is wrong
when it suggests that the claim of serious psychological problems
was used mainly in order to prolong the asylum procedure.
also finds it surprising that the medical investigation carried out
by the Bureau Vreemdelingen Advisering dated 23 October 1997 was merely
limited to establishing that there are facilities for psychiatric
help in Tunisia, and that the statements of the author about the torture,
the scars he bears and the traumas he has indicated were not even
considered. This, along with the letter from the social worker, should
have prompted a more thorough examination.
also provides copy of a medical report dated 23 October 1997 made
by the psychiatrist who examined the author at the aliens detention
centre "De Geniepoort" in which it is indicated that the author presents
a suspicious attitude which might possibly result from a psychiatric
disorder. It is also indicated that, because of that attitude and
the incomplete information concerning his prior history, a diagnosis
cannot be made with certainty but a schizophrenic development cannot
be excluded. Further examination is required.
and proceedings before the Committee
considering any claims contained in a communication, the Committee
against Torture must decide whether or not it is admissible under
article 22 of the Convention. The Committee has ascertained, as it
is required to do under article 22, paragraph 5 (a), of the Convention,
that the same matter has not been and is not being examined under
another procedure of international investigation or settlement. The
Committee also notes that all domestic remedies have been exhausted
and finds that no further obstacles to the admissibility of the communication
exist. Since both the State party and the author's counsel have provided
observations on the merits of the communication, the Committee proceeds
with the consideration of those merits.
6.2 The issue
before the Committee is whether the forced return of the author to
Tunisia would violate the obligation of the Netherlands under article
3 of the Convention not to expel or to return a person to another
State where there are substantial grounds for believing that he would
be in danger of being subjected to torture.
6.3 The Committee
must decide, pursuant to paragraph 1 of article 3, whether there are
substantial grounds for believing that the author would be in danger
of being subjected to torture upon return to Tunisia. In reaching
this decision, the Committee must take into account all relevant considerations,
pursuant to paragraph 2 of article 3, including the existence of a
consistent pattern of gross, flagrant or mass violations of human
rights. The aim of the determination, however, is to establish whether
the individual concerned would be personally at risk of being subjected
to torture in the country to which he or she would return. The existence
of a consistent pattern of gross, flagrant or mass violations of human
rights in a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his return to that country; specific grounds
must exist indicating that the individual concerned would be personally
at risk. Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person cannot be considered to
be in danger of being subjected to torture in his or her specific
from reliable sources have over the years documented cases suggesting
that a pattern of detention, imprisonment, torture and ill-treatment
of persons accused of political opposition activities, including links
with the Al-Nahda movement, exist in Tunisia.
6.5 The Committee
notes that in the proceedings that followed his first request for
asylum the author lied about his identity and his nationality and
expressed a number of inconsistencies as to the reasons that prompted
his departure from Tunisia. In the Committee's view, however, these
inconsistencies were clarified by the explanations given by the author
in his interview with immigration authorities on 24 February 1997,
explanations which have not been referred to in the State party's
respect to the medical evidence provided by the author, in the Committee's
view the State party has failed to explain why his claims were considered
insufficiently substantial as to warrant a medical examination.
6.7 The author
has repeatedly stated that he is not a supporter of the Al-Nahda
movement. This fact leads the State party to conclude that the Tunisian
authorities would not have interest in him. The Committee notes, however,
that the State party does not dispute that the author was tortured
while held in police custody as a result of assisting an Al-Nahda
member to flee to Algeria and emphasizes the fact that it occurred
because of the Al-Nahda association. It also notes that the
author escaped from the barracks where he was performing military
service. If the author was tortured in the past despite not being
an Al-Nahda supporter, he could be tortured again in view of
his past history of detention, his assistance of an Al-Nahda
member to flee to Algeria and his desertion from the military barracks
6.8 In the
circumstances, the Committee considers that substantial grounds exist
for believing that the author would be in danger of being subjected
to torture if returned to Tunisia.
7. In the
light of the above, the Committee is of the view that, in the prevailing
circumstances, the State party has an obligation, in accordance with
article 3 of the Convention, to refrain from forcibly returning the
author to Tunisia or to any other country where he runs a real risk
of being expelled or returned to Tunisia.
English, French, Russian and Spanish, the English text being the original