Submitted by: M.R.P. (name deleted) (represented by counsel)
victim: The author
communication: 7 October 1998
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
on 24 November 2000,
its consideration of communication No. 122/1998, submitted to the Committee
against Torture under article 22 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
into account all information made available by the author of the
communication and the State party,
the following decision:
1.1 The author of the communication is Mr. Mizanur Rahman Pir, a citizen
of Bangladesh born in 1969 and currently residing in Switzerland, where
he applied for asylum on 29 August 1997. His application having been
turned down, he maintains that his forcible repatriation to Bangladesh
would constitute a violation by Switzerland of article 3 of the Convention
against Torture. He is represented by counsel.
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
the communication to the State party on 27 November 1998. At the same
time, the State party was requested, pursuant to rule 108, paragraph
9, of the Committee's rules of procedure, not to expel the author to
Bangladesh while his communication was under consideration by the Committee.
In a submission dated 22 January 1999, the State party informed the
Committee that steps had been taken to ensure that the author was not
returned to Bangladesh while his case was pending before the Committee.
as submitted by the author
2.1 The author
claims to be a member of the Bangladesh National Party (BNP), the main
opposition political party. He was president of the BNP Union from 1994
to 1997 and vice-president of a regional BNP youth organization (the
Yuba Dubal) as of 1997.
2.2 On 13 January
1997, the author and his brother were apparently attacked by members
of the Awami League (AL), the political party in power. The author managed
to flee, but his brother was seriously injured. A complaint was lodged
with the police. The police arrested one of the suspected attackers,
but quickly released him without charge. Members of the arrested person's
family also exerted pressure on the author, who in the end withdrew
2.3 After that
incident, the author was forced to leave his home during the day. In
the night of 13-14 June 1997, an AL member who was a driver for one
of the organization's leaders, Mr. Shafijrahman, was killed. The attack's
intended victim was apparently Mr. Shafijrahman himself, who was prompted
to lodge a complaint against the author and four other BNP sympathizers.
In that regard, the author points out that, in Bangladesh, it is common
practice for BNP members to have complaints lodged against them and
to be charged on non-existent grounds; this, in fact, constituted an
abuse of power by AL members to intimidate and eliminate political opponents.
After the complaint was lodged, the author decided to leave his country
2.4 The author
arrived in Switzerland on 26 August 1997 and applied for asylum on 29
August 1997. His application was turned down on 7 January 1998, essentially
on the grounds that the attack against him and his brother had not been
carried out by the State. The author appealed the ruling to the Swiss
appeals court dealing with asylum matters. The appeal was rejected on
15 April 1998.
of the complaint
3.1 The author
states that Bangladesh is a country with gross, flagrant and mass human
rights violations, within the meaning of article 3, paragraph 2, of
the Convention. Given that a complaint had been lodged against him,
there is serious reason to believe that he risks being subjected to
torture should he be returned to Bangladesh. Torture and ill-treatment
are commonplace in Bangladesh, the prisons are overcrowded and prison
sanitary conditions are inhuman. The author claims that, in December
1997 alone, at least four people were killed while remanded in custody.
3.2 The author also recalls that the vice-president of Yuba Dubal had
been the target of intimidation on the part of Awami League members
more than once. He considers that the charge of murder against him is
part and parcel of the climate of oppression prevailing in his country
and that the aim is to eliminate him personally as an opponent. He also
considers that, if he had been arrested, he would probably be in prison
and the victim of abusive treatment and torture. Since the judiciary
is controlled by those in power, it is unlikely he would be acquitted
and he therefore ran the risk of life imprisonment or the death penalty.
by the State party on the admissibility and merits of the communication
4.1 The State
party did not contest the admissibility of the communication and, in
a letter dated 18 June 1999, made observations on its merits.
4.2 The State
party points out that there remains some doubt as to the author's true
identity. Those doubts stem not only from the fact that the author's
name is spelled in two different ways in the translation of the documents
he produced, but also from the absence of the certificate that the author
undertook to provide. It is therefore difficult to be certain that the
documents submitted to the Swiss authorities refer to the author.
4.3 The State
party also wishes to inform the Committee about the contradictions observed
in the course of the two hearings during the asylum procedure. At the
first hearing, the author stated that the person who had been killed
was called Babu, but, at another hearing, he said that the person was
called Abul Kalama and that he knew of no other name for that person.
The State party nevertheless emphasizes that that contradiction alone
is not a sufficient basis for concluding that the communication is unfounded.
4.4 The State
party considers, contrary to the author, that the Bangladeshi police
took a number of measures to prosecute the perpetrators of the attack
on the author and his brother. In addition, the author and his brother
could have taken the matter to a higher court. Lastly, the State party
points out that, after the incident, the author continued to live at
home, which would seem to prove that he no longer stood in great fear
of his political enemies.
it acknowledges the existence in Bangladesh of politically motivated
complaints (i.e. complaints that are not based on facts, but whose sole
aim is to cause trouble for a political adversary), the State party
underlines that the administrative inquiries that follow on the complaints
are legitimate and therefore in no way reflect political motivation
on the part of the State. The State party also points out that the Special
Powers Act, which allows for unlimited detention without trial, is not
applicable in the author's case and that there is therefore little likelihood
that the author will be imprisoned for an indefinite time.
4.6 With regard
to the author's allegations that the courts and tribunals of Bangladesh
are corrupt and controlled by the Government, the State party considers
that, while that may be the case for lower courts, higher courts are
independent and impartial. There is therefore no evidence that the author
would not be granted the benefit of an impartial and fair trial.
4.7 According to the State party, neither the risk of being tried by
a Bangladeshi court nor the fact that he might be imprisoned, and could
therefore be subject to ill-treatment, are reasons to prevent the author's
expulsion on the basis of article 3 of the Convention.
5.1 The author
comments on the State party's observations on the merits of the communication
in a letter dated 10 August 1999.
5.2 The author
points out that the State party recognizes that, in Bangladesh, extremists
from certain parties lodge complaints against opponents for purely political
reasons and that certain lower courts are corrupt and not independent.
The State party therefore does not dispute the fact that the author
would probably be imprisoned on arrival in Bangladesh, that he risks
being ill-treated and tortured while being held, that he would probably
be convicted by a lower court and that he would have to wait for a higher
court to consider his case to obtain what might be a fair trial.
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. It has ascertained, as it is required
to do in accordance with 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. It also notes
that all domestic remedies have been exhausted and that the State party
has not contested the admissibility of the communication. It therefore
considers that the communication is admissible. As both the State party
and the author 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 Bangladesh
would violate the obligation of the State party under article 3 of the
Convention not to expel or 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 article 3, paragraph 1, whether there are substantial
grounds for believing that the author would be in danger of being subjected
to torture upon return to Bangladesh. In reaching this decision, the
Committee must take into account all relevant considerations, pursuant
to article 3, paragraph 2, 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 or
her return to the country. There must be other grounds indicating that
the individual concerned would be personally at risk. However, the absence
of a consistent pattern of gross violations of human rights does not
mean that a person might not be subjected to torture in his or her specific
6.4 The Committee
recalls its general comment on the implementation of article 3, which
"Bearing in mind that the State party and the Committee are obliged
to assess whether there are substantial grounds for believing that
the author would be in danger of being subjected to torture were he/she
to be expelled, returned or extradited, the risk of torture must be
assessed on grounds that go beyond mere theory or suspicion. However,
the risk does not have to meet the test of being highly probable"
(A/53/44, annex IX, para. 6).
6.5 The Committee
notes the arguments advanced by the author and by the State party regarding
the alleged risk of the author's being tortured and considers that the
latter has not produced enough evidence to show that he would run a
personal real and foreseeable risk of being tortured in Bangladesh.
6.6 The Committee
therefore finds that the information submitted to it does not demonstrate
that there are substantial grounds for believing that the author would
be in danger of being personally tortured if returned to Bangladesh.
the Committee against Torture, acting under article 22, paragraph 7,
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the decision of the State party
to return the author to Bangladesh does not constitute a breach of article
3 of the Convention.