Communication No. 170/2001
Submitted by : A.R. (name withheld)[represented
Alleged victim: The author
State party: Sweden
Date of communication: 27 April 2000
The Committee against Torture
, established under Article 17 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 23 November 2001,
Adopts the following:
1.1 The author of the communication, dated 27 April
2000, is Mr. A. R., a citizen of Bangladesh, born on 6 September
1966, whose application for refugee status was rejected in Sweden
on 19 March 1997. He claims that his deportation to Bangladesh
constitute a violation by Sweden of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. He is represented by counsel.
1.2 The State party ratified the Convention on 8
January 1986 and made the declaration under article 22 of the
at the same time.
1.3 In accordance with article 22, paragraph 3 of
the Convention, the Committee transmitted the communication to
State party on 4 October 2000. Pursuant to rule 108, paragraph
9, of the Committee's rules of procedure, the State party was
not to deport the petitioner to Bangladesh pending the consideration
of his case by the Committee. In a submission dated 21 November
2000, the State party informed the Committee that the petitioner
would not be deported to his country of origin while his communication
was under consideration by the Committee.
The facts as presented by the petitioner
2.1 The petitioner states that since the beginning
of the 80's, he was active in the Hindu-Buddha Christian Minority
Organization and in the Bangladesh Chattra League.
2.3 During the autumn of 1992, he was attacked and
abused by Muslims and detained by the police for his participation
in a demonstration where he was allegedly tortured, hit on the
soles of his feet and hanged upside down. He was released with
of his party and went to India for several months.
2.4 He returned later to Bangladesh and became active
in the Bangladesh Sharbohara Party (BSP). Beginning 1995, he was
again detained during two months by the police for his participation
in a political rally. During this period, he was allegedly tortured,
and he submits a medical and psychiatric report established in
Denmark concerning prior injuries and post-traumatic stress disorder.
2.5 After having spent another month in India, he
returned to Bangladesh and became responsible for BSP's public
2.6 The petitioner was then allegedly advised by
others members of his party to leave Bangladesh. The party arranged
financed his flight to Sweden in October 1995.
2.7 The petitioner arrived in Sweden on 24 October
1995 and applied for refugee status. His application was rejected
by the Swedish Migration Board on 13 December 1995 and, on appeal,
by the Aliens Appeals Board on 19 March 1997.
2.8 Subsequently, the petitioner made three new applications
before the Aliens Appeal Board under Chapter 2, Section 5 (b)
the Swedish Aliens Act, which allows to resubmit applications before
such body on the basis of factual circumstances that have not
earlier examined by the competent authorities. The petitioner's
applications were all rejected, the latest by a decision of 9
3.1 The petitioner claims that he was subjected to
torture when he was detained in Bangladesh. He submits some medical
evidence in this regard.
3.2 The petitioner claims that if he is returned
to Bangladesh, he would be again subjected to torture and that
decision forcibly to remove him to Bangladesh would therefore entail
a violation of article 3 of the Convention by the State party.
State party's observations on the admissibility
4.1 In a submission dated 21 November 2000, the State
party made its observations on the admissibility of the case.
4.2 The State party mainly draws the attention of
the Committee to the condition of the exhaustion of internal remedies
and to the fact that the decision for removal of the petitioner
acquired legal force with the decision of the Aliens Appeals Board
of 19 March 1997 and, according to Chapter 8, Section 15 of the
Swedish Aliens Act, has become statute-barred after 4 years, on
19 March 2001. By the time the Committee would consider the present
communication, the removal decision would therefore no longer
4.3 The State party thus contends that if the petitioner
would still like to obtain a residence permit in Sweden, he should
makea new application to the Swedish Migration Board, which would
have to take into account all circumstances invoked by the petitioner
regardless of whether they have already been examined (2).
The decision would also be appealable to the Aliens Appeal Board.
4.4 The State party refers in this regard to an earlier
decision taken by the Committee (J.M.U.M. v. Sweden, Communication
nr. 58/1996) in which it decided that the communication was inadmissible
for failure of exhaustion of domestic remedies because the new
application that had been filed after that the original expulsion
lost legal force was still pending before the Swedish Migration
4.5 The State party also considers that the communication
could be declared inadmissible as being incompatible with the
of the Convention, in the sense of article 22, paragraph 2, because
there is no longer any enforceable expulsion order.
5.1 In a submission dated 28 December 2000, the petitioner
transmitted his comments on the observations from the State party.
5.2 The petitioner contends that if he had made a
new application for asylum, he would have been taken into custody
and the Swedish Migration Board would have probably taken the decision
to remove him to Bangladesh, even if such a decision had been
The petitioner argues that he has indeed no chance to be granted
refugee status in Sweden because the situation in Bangladesh has
not changed since the decision of 19 March 1997 of the Aliens Appeal
Board and the State party's immigration authorities would be in
the same situation as they were originally. Neither has he any
chance to obtain a residence permit on humanitarian grounds for
reasons. Rather, he would be blamed for having hidden himself and
for not having complied with the original decision of 19 March
5.3 The petitioner considers that since the State
party has not granted him refugee status despite the existence
documents proving that he has been tortured in the past, the only
possibility for avoiding a risk of torture in Bangladesh is a
of his case by the Committee.
Additional comments by State party
6.1 In a submission of 6 April 2001, the State party
reiterates that since the original decision of 19 March 1997 was
no longer enforceable, the petitioner could make a new application
for residence permit, which, as of the date of the submission,
not yet been done. Moreover, according to the State party's legislation,
the Swedish Migration Board may also take a decision, appealable
before the Aliens Appeal Board, even if the petitioner does not
make such a new application. Such a decision had also not been
at the time of the submission.
6.2 The State party reiterates that the communication
should be declared inadmissible for non-exhaustion of domestic
In this regard, the State party considers, that contrary to the
petitioner's suggestion, such a new application would be effective
to the extent that the Swedish Migration Board would have to take
into account new circumstances as well as the one presented before.
The petitioner would thus legally be in the same position as when
he made is original application. Among the grounds on which he
base his new application are the risks of being subjected to torture
if is returned to his native country, humanitarian grounds, his
state of health, and the links he has established with the Swedish
society. In this respect, the State party notes that the petitioner
has been staying in Sweden for more than five years and, according
to available information, would have married a Swedish citizen
6.3 Finally, the State party underlines that a direct
enforcement of the Swedish Migration Board, without allowing reconsideration
on appeal, is possible only in cases where it is obvious that there
are no grounds for granting a residence permit. Moreover, if the
petitioner has resided in Sweden for more that three months after
his first application, such a direct enforcement, which is also
appealable to the Alien Appeal Board, could only take place in
the presence of exceptional grounds, such as if the petitioner
crimes in Sweden. The State party is therefore of the opinion that
a direct enforcement is unlikely in the petitioner's case.
Issues and proceedings before the Committee
7.1 The Committee considers that, in the present
case, the principle of exhaustion of internal remedies requires
to use remedies that are directly related to the risk of torture
under article 3 of the Convention. The Committee is therefore
the opinion that the elements that are totally unrelated to the
allegations of torture, such as his situation in Sweden and the
fact that he has married with a Swedish citizen are not within
the scope of those that should be addressed in a remedy that has
be exhausted in order to meet the requirements of article 22, paragraph
5 (b) of the Convention.
7.2 Nevertheless, the Committee has been informed
that the petitioner has submitted a new application for residence
permit on 6 June 2001, which may be decided, inter alia, on the
grounds of a risk of torture in his country of origin. The Committee
finds therefore that the author has not exhausted domestic remedies.
8. The Committee consequently decides:
(a) That the communication is inadmissible;
(b) That this decision may be reviewed under rule
109 of the Committee's rules of procedure upon receipt of a
by or on behalf of the petitioner containing information to the
effect that the reasons for inadmissibility no longer apply;
(c) That this decision shall be communicated to
the State party, the petitioner and his representative.
[Done in English, French, Russian and Spanish, the
English being the original version.]
1. The State party explains that, under Swedish law, the three
new applications to the Aliens Appeal Board that were made by
after 19 March 1997 have no incidence on the limitation period.
2. Such an application would therefore be different
in nature from the one referred to under paragraph 2.8.