Communication No. 100/1997
by: J.U.A. (name deleted)
victim: The author
party concerned: Switzerland
communication: 6 December 1997
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 10 November 1998,
concluded its consideration of communication No. 100/1997, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
taken into account all information made available to it by the
author of the communication, his counsel and the State party,
Views under article 22, paragraph 7, of the Convention
1. The author
of the communication is J.U.A., a Nigerian citizen born in 1968. He
is currently living in Switzerland, where he has applied for asylum,
and risks being sent home. He claims that his expulsion would constitute
a violation of article 3 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment.
facts as submitted by the author
2.1 The author
claims that he is a member of NADECO (National Democratic Coalition),
the opposition movement. In 1994, he took part in an action committee
opposing the plan to hold the Junior World Cup for Football in Lagos,
which in his view was an act of political propaganda by the then Government
of Nigeria. He contacted some key figures and university leaders with
a view to organizing demonstrations in a number of towns, including
Enugu, where he grew up. In February 1995, a police officer who was
a friend of his father's warned him that the Lagos police had issued
a warrant for his arrest because of his activities in opposition to
the championship. After learning of the warrant for his arrest, the
author, who normally lived in Lagos, went to the town of Epe, where
he hid for several months before his departure for Europe.
2.2 On 14
August 1995, the author filed an application for asylum in Switzerland,
which was rejected on 28 May 1996 by the Federal Office for Refugees
(Office Fédéral des réfugiés - ODR). On 23 September 1997,
his appeal was rejected by the Appeal Commission (Commission suisse
de recours en matière d'asile - CRA). A request for revision,
filed on 6 November 1997, was rejected by CRA on 18 November 1997.
2.3 By way
of evidence, the author produced the warrant for his arrest, a document
which he claims to have obtained from Nigeria. The Swiss authorities
considered the document to be a forgery. The author states that he
was unaware of this and that he was acquitted by the St. Gallen district
court of the charge of falsifying documents. He likewise points out
that the Swiss authorities never contacted any of the persons with
whom he worked on preparations for the demonstrations in Nigeria,
nor the police officer mentioned above, despite the fact that he provided
them with the officer's name and address. In addition, he states that
he was not allowed to see the report about his case drawn up by the
Swiss Embassy in Lagos, and received only a summary. Finally, he claims
that, during his two hearings with the Swiss immigration authorities,
he gave the same version of the events that had prompted his departure
3.1 The author
points out that the Swiss authorities have not granted asylum to anyone
from Nigeria since 1991, despite the fact that some 100 applications
are filed every year. He claims that prisoners are systematically
tortured in Nigeria, and that rejected asylum-seekers are arrested
on their return. In view of his experiences in Nigeria, and of his
activities in Switzerland to promote human rights in Nigeria, including
the items he has published in Planetá, Ostschweiz and
St. Galler Tagblatt, as well as his participation in various
demonstrations, he risks being persecuted by the Nigerian authorities
if he is sent back. He would in all likelihood be arrested and held
under threat of torture.
State party's observations on the admissibility and merits of the
4.1 By letter
dated 19 February 1998, the State party informs the Committee that,
pursuant to its request under rule 108 (9) of the Committee's rules
of procedure, the authorities have decided to defer sending back the
author for so long as his communication is pending before the Committee.
The State party also points out that the author has exhausted domestic
remedies, and does not contest the admissibility of the communication.
regard to the merits, the State party observes that the author filed
an application for asylum which was rejected by ODR, inter alia,
because he had not succeeded in credibly establishing that he belonged
to NADECO. Other grounds for CRA's rejection of his appeal and his
request for revision were that the author's allegations, in particular
concerning the reasons for his departure from his country of origin,
were not sufficiently plausible and that the author's fear that he
would be persecuted by the Nigerian authorities for his political
activities in exile were unfounded.
ODR's decision to reject the application for asylum, particularly
on the ground that the allegations that he was wanted by the police
were based on two forged arrest warrants, criminal proceedings were
brought by the authorities of the canton of St. Gallen for falsification
of documents, resulting in the author's acquittal. In its acquittal
decision, the court deemed that the non-authentic nature of the documents
had not been proved. The court stated that, for the purposes of rendering
a decision, it lacked material for a comparison, and considered that
ODR had failed to satisfy the requirements of criminal law by not
consulting an independent expert.
4.4 The State
party argues that the requirements regarding proof differ, depending
on whether proceedings are criminal or administrative, and that the
criminal decision of the district court by no means constituted a
finding that the documents in question were authentic. The decision
was substantiated only briefly. It was entirely unclear on what basis
the court differed from ODR's findings regarding the ample proof of
falsification. The procedure followed by ODR in the case in point
was altogether normal and compatible with law, jurisprudence and practice.
It was based on the experience and knowledge of the Office, which
keeps documentation of its own on the countries of origin of asylum-seekers.
4.5 The arguments
presented to the Committee by the author have already been adduced
before the Swiss authorities and have been examined by ODR and CRA.
The author first attempted to prove that he was wanted by the police,
invoking two arrest warrants which in the view of ODR are forgeries.
Secondly, to support his claim that he was afraid of arrest, he furnished
a list of members of NADECO who had allegedly been arrested, and on
which his own name appears; according to information obtained by the
Swiss Embassy in Lagos, however, that list did not conform to reality.
In fact, most of the individuals whose names appear on it, and who
according to the author have been detained, are not in detention.
According to the same sources, the author's name was unknown in the
inner circles of NADECO, nor was he sought by the police. Furthermore,
the author failed to produce, during the asylum process, any reliable
official document of attestation, with the result that his identity
is not established with certainty.
4.6 In addition,
the author's statements contained a number of discrepancies. With
regard, for example, to Epe Town, the place where he is said to have
hidden before leaving the country, he provided two different accounts
of its geographical location, in Lagos and near Enugu, although those
two cities are 500 kilometres apart.
4.7 The author
also contends that he risks persecution for his commitment to respect
for human rights in Nigeria - political activities in which he has
participated since his arrival in Switzerland. In the view of the
State party, however, there is insufficient reason to believe that
the Nigerian authorities would pay much attention to such opinions,
or want to pursue the author on that basis, since his views are mild
in comparison to the criticisms levelled at the regime by the Nigerian
press or by the opposition in exile, if in fact the Nigerian authorities
are even aware of the author's articles, considering the small circulation
of the publications in question.
the contention that Nigerian asylum-seekers in general, and the author
in particular as an asylum-seeker, are arrested on their return is
unfounded, according to reliable sources available to the Swiss asylum
authorities. No properly substantiated case has been reported that
supports the notion that rejected asylum-seekers are systematically
persecuted simply for filing an application for asylum.
carefully examined the case in question as well as the situation in
the country of origin, the State party consequently considers that
there are no substantial grounds for believing that the author would
risk being subjected to torture if he returned to Nigeria.
5.1 The author
stresses that, despite the brutality of the political regime in Nigeria,
the Swiss authorities have systematically rejected all asylum applications
by Nigerian citizens for at least seven years now. As for the matter
of discrepancies in his statements, he contends that he has consistently
said that he went to Epe after learning of the warrant for his arrest,
which confirms his credibility.
5.2 It has
not been established that the documents he submitted were forged.
The decision of the district court was substantiated only briefly
because the court suggested that the author should forego a detailed
statement of the grounds, but the proceedings themselves were not
conducted in a summary manner.
and proceedings before the Committee
considering any claims contained in the 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 there are no further obstacles to its declaring the communication
admissible. Since the State party and the author have both made comments
regarding the substance of the communication, the Committee will proceed
to consider the communication on its merits.
6.2 The Committee
must decide whether sending the author back to Nigeria would violate
the State party's obligation under article 3 of the Convention not
to expel or return (refouler) an individual to another State
if there are substantial grounds to believe 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 tortured if sent back to Nigeria. To do so, it must take
account of all relevant considerations as called for by article 3,
paragraph 2, including the existence of a consistent pattern of gross,
flagrant or mass violations of human rights. The aim, however, is
to determine whether the individual concerned would personally risk
torture in the country to which he or she would return. It follows
that the existence of a consistent pattern of gross, flagrant or mass
violations of human rights in a country does not as such constitute
sufficient grounds for determining whether the particular person would
be in danger of being subjected to torture upon his return to that
country; additional grounds must be adduced to show 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 particular circumstances.
6.4 In the
case in point, the Committee notes that the author has never been
arrested or subjected to torture. Nor has the author claimed that
persons in his immediate circle or individuals who participated in
the events which according to him were the reason for his departure
from the country were arrested or tortured. Furthermore, it has not
been clearly established that the author continues to be sought by
the Nigerian police or that the arrest warrant he furnished is an
authentic document. Finally, the author has not cited specific cases
of individuals alleged to have been tortured in Nigeria after being
rejected by countries from which they had requested asylum.
6.5 The Committee
notes with concern the numerous reports of human rights violations,
including the use of torture, in Nigeria, but recalls that, for the
purposes of article 3 of the Convention, the individual concerned
must face a foreseeable, real and personal risk of being tortured
in the country to which he is returned. In the light of the foregoing,
the Committee deems that such a risk has not been established.
6.6 On the
basis of the above considerations, the Committee considers that the
information before it does not show substantial grounds for believing
that the author runs a personal risk of being tortured if he is sent
back to Nigeria.
7. 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 facts before it do not indicate a breach
of article 3 of the Convention.
English, French, Russian and Spanish, the French text being the original