Submitted by: Z. T. (name withheld)
victim: The author
communication: 25 January 1998
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
on 19 November 1999,
Decision on admissibility
1.1 The author
of the communication is Mr. Z. T., an Ethiopian national at present
residing in Norway, where his request for asylum has been denied and
he risks deportation. He claims that he would risk imprisonment and
torture upon return to Ethiopia and that his forced return to that country
would therefore constitute a violation by Norway of article 3 of the
Convention. The author is represented by the Rådgivningsgruppa (The
Advisory Group), a non-governmental refugee and human rights organization.
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
the communication to the State party on 5 February 1999. Pursuant to
rule 108, paragraph 9, of the Committee's rules of procedure, the State
party was requested not to expel the author to Ethiopia pending the
consideration of his case by the Committee.
as presented by the author
2.1 The author
states that he is of Amharic ethnic origin born in Jinka where his father
was a judge. During his high school in Addis Ababa, the author participated
in several demonstrations against Haile Selaissie and in favour of Col.
Mengistu. When Mengistu came to power in February 1977, youths, including
the author, were sent to rural areas as part of a literacy campaign.
Disappointed with the regime, the author came into contact with the
Ethiopian People's Revolutionary Party (EPRP) and started to work for
to the author, the EPRP started to organize resistance against the
Mengistu regime by calling students and youth back from the rural
areas to Addis
Ababa. In 1977 the conflicts between the various political groups
resulted in the so-called "Red Terror", the brutal eradication of all opposition
to the governing Provincial Military Administrative Council (PMAC) and
random killings. An estimated 100,000 people were killed. The author,
who had been distributing pamphlets and putting up posters in Addis
Ababa on behalf of the EPRP, was arrested and taken to a concentration
camp, together with thousands of other youth, where he was held for
one year between 1980 and 1981. While in the camp he was subjected to
fake executions and brainwashing, the so-called "baptism by Mengistu".
According to the author, the "Red Terror" ended when the regime
was convinced that the leaders of the EPRP were all dead. Many political
prisoners, including the author, were then set free.
2.3 After his
release he went underground and continued his work for the EPRP.
The author states that the Mengistu regime carefully followed the
of previous political prisoners to suppress a revival of the opposition.
In 1986/87, the author was arrested in a mass arrest and taken to "Kerchele" prison, where he was imprisoned for four years. According to the author,
the prisoners were forced to walk around naked and were subjected
to ill-treatment in the form of regular beatings with clubs. While
he suffered from tuberculosis.
2.4 In May
1991, the Mengistu regime fell and the Ethiopian People's Revolutionary
Democratic Front (EPRDF) came to power. According to the author, the
prison guards fled in panic and the prisoners left. Once free, the author
tried to get in touch with members of the EPRP, but all his contacts
were gone. He then started to work for the Southern Ethiopian Peoples
Democratic Coalition (SEPDC), a new coalition of 14 regional and national
political opposition parties. The author worked as a messenger for one
of the leaders, Alemu Abera, in Awasa. In February 1995 he was on his
way to deliver a message to Mr. Alemu when he was caught by the police.
2.5 The author
states that he was kept in detention for 24 hours in Awasa and then
transferred to the central prison, "Meakelawi Eser Bete", in Addis Ababa.
After three days, he was taken to "Kerchele" prison where
he was kept for one year and seven months. He was never tried or
had contact with a lawyer. The treatment in prison was similar to
author had experienced during his first imprisonment. He says that
he was taken to the torture room and threatened that he would be
he did not cooperate. He believes that the only reason he was not
severely tortured like many other prisoners was that he was already
in a weak
physical condition. While in prison he further developed epilepsy.
2.6 The author,
who had previously worked as a technician, was made responsible for
certain repairs in prison. On 5 October 1996 he managed to escape when
he was taken to the house of one of the high-ranking guards to make
some repairs. Through a friend, the author managed to get the necessary
papers to leave the country and requested asylum in Norway on 8 October
2.7 On 18 June
1997 the Directorate of Immigration turned down his application for
asylum, mainly on the basis of a verification report by the Norwegian
Embassy in Nairobi, on the basis of contradictory information said to
have been given by the author and his mother and chronological discrepancies
in his story. He appealed on 3 July 1997. The appeal was rejected by
the Ministry of Justice on 29 December 1997 on the same grounds. On
5 January 1998, a request for reconsideration was made which received
a negative decision from the Ministry of Justice on 25 August 1998.
to the author, his right to free legal assistance had been exhausted
and the Advisory Group agreed to take his case on a voluntary basis.
On 1 and 9 September 1998, the Advisory Group made additional requests
for reconsideration and deferred execution of the expulsion decision,
which were rejected on 16 September 1999. The author has submitted to
the Committee, in this regard, copies of 16 pieces of correspondence
between the Advisory Group and the Ministry of Justice, including a
medical certificate from a psychiatric nurse indicating that the author
suffers from post-traumatic stress syndrome. The date of expulsion was
finally set for 21 January 1999.
2.9 The author
states that all the inconsistencies regarding dates referred to by
the Norwegian authorities can be explained by the fact that during
interrogation he agreed to be questioned in English, not having been
informed that he had the right to have an Amharic interpreter present.
He states that since the difference in years between the Ethiopian
Norwegian calendar is approximately eight years, when he tried to
calculate the time in Norwegian terms and translate this into English,
dates became confused. The situation was further complicated by the
fact that in Ethiopia the day starts at the equivalent of 6 o'clock
in the morning in Norway. That meant that when the author said "2
o'clock" , for instance, it should be interpreted as "8 o'clock".
2.10 The author
further states that during the interrogation he referred to the Southern
Ethiopian People's Democratic Coalition (SEPDC) as the "Southern
People's Political Organization" (SPPO), which does not exist.
He claims that the error was due to the fact that he only knew the
name of the organization in Amharic. However, he gave the correct
the leader of the SEPDC, who was one of his contact persons.
the author provided a detailed explanation regarding the discrepancies
between his statements and the information provided by his mother to
the representative of the Norwegian Embassy in Nairobi.
3. The author
argues that he would be in danger of being imprisoned again and tortured
if he were to return to Ethiopia. He says that during the asylum procedure,
the immigration authorities did not seriously examine the merits of
his asylum claim and did not pay enough attention to his political activities
and his history of detention.
party's observations on admissibility
4.1 By its
submission of 31 March 1999, the State party challenges the admissibility
of the communication owing to the failure to exhaust domestic remedies,
and asks the Committee to withdraw its request under rule 108, paragraph
9, of its rules of procedure.
4.2 The State
party submits that applications for political asylum are dealt with
in the first administrative instance by the Directorate of Immigration,
while a possible administrative appeal is decided by the Ministry of
Justice. As soon as a person submits an application for asylum, an attorney
is appointed. Thus, at the time he gives his first statement to the
immigration authorities, the applicant has free legal representation.
the usual practice the author was informed that: (a) he was obliged
to give the authorities all relevant information as thoroughly as possible,
(b) additional information could be supplied later, but that could weaken
the trustworthiness of the application, and (c) the civil servants and
interpreters dealing with his application were under a duty to observe
secrecy. The author's application underwent detailed scrutiny both in
the Directorate of Immigration and on appeal by the Ministry of Justice.
However, it was turned down by both instances and the author was asked
to leave Norway.
4.4 The State
party submits that as a general rule, the absence of any contrary provision,
the legality of an administrative act may be challenged in Norwegian
courts. Thus, asylum-seekers who find their applications for political
asylum turned down by the administration have the possibility of filing
an application before Norwegian courts for judicial review and thereby
have the legality of the rejection examined. Such an application is
not subject to leave by the courts; neither is an application for injunction.
4.5 A party
concerned may apply to the courts for an injunction, asking the court
to order the administration to defer the deportation of the asylum-seeker.
According to the Enforcement of Judgements Act 1992, an order for
may be granted if the plaintiff (a) demonstrates that the challenged
decision probably will be annulled by the court when the main case
to be adjudicated, and (b) shows sufficient reasons for requesting
an injunction, i.e. that an injunction is necessary to avoid serious
or harm if the expulsion were enforced without the court having had
the opportunity to adjudicate in the main case. Where the contested
decision is a denial of asylum status the second requirement in practice
merges with the first requirement which means that in an asylum case
an application for injunction depends on whether or not the plaintiff
can demonstrate that the challenged decision probably will be annulled
by the court in the subsequent main case.
4.6 The author
says under part 1 of his communication that a case concerning the
legality of the decision denying him asylum in Norway only "theoretically" may be taken to Norwegian courts. This seems to indicate that he regards
the domestic remedies as not in practice having been accessible to
him. The Government contends that practice in Norway clearly shows
since 1987 more than 150 cases concerning the legality of decisions
denying asylum have been brought before Norwegian courts. A majority
of these cases included a request for injunction.
4.7 The State
party notes that the author's last argument in connection with the admissibility
question concerns his financial situation. It is argued that he will
not be able to afford to go to court. In that regard, the Government
would point out that even if that were the case, it cannot serve to
remove the requirement of article 22 (5) (b) of the Convention. The
wording of the provision is clear and is not open for this defence.
Secondly, the author is in fact represented before the Committee.
4.8 The Government
further states that the national courts fill a crucial function in
the protection of human rights. International supervision in its
forms is secondary. The international bodies are in cases like the
present one less well placed than national courts to assess evidence.
especially so when it concerns hearing of parties and witnesses on
questions of reliability and truthfulness. In court oral testimony
will be subject
to examination by both parties, and possibly by the court itself.
Such a procedure is not undertaken by the Committee. The facts of
as they emerge from the documents are complex and detailed. Details
have to be understood in the light of oral testimony presented in
The requirement that domestic remedies be exhausted is therefore
even more compelling. The Committee ought not to shortcut the case
by considering the merits of the communication.
4.9 In conclusion,
the State party submits that the author has not brought his case before
Norwegian courts, either as an application for annulment or in the form
of an application for injunction. His case would have been tried by
Norwegian courts had he brought the case, since the courts have the
authority to try both questions of fact and questions of law (i.e. the
application of the Convention).
5.1 With reference
to the State party's comments about the author's financial situation
and the fact that he is being represented before the Committee, counsel
points out that she has no legal background and that she represents
the author on a voluntary basis.
further states that according to information available to her, the
provisions mentioned by the State party regarding legal aid and assistance
asylum-seekers are limited to five hours for the administrative application
and three hours in case of a request for reconsideration. In case
a final negative administrative decision, the appointed lawyer withdraws
from the case and the asylum-seeker no longer has any right to free
legal representation. In the case under consideration the lawyer
her work in August 1998, once the Minister of Justice adopted his
decision. Hiring a lawyer would cost more than what the author, living
in a centre
for asylum-seekers and with no right to a work permit, receives from
the State to cover his living expenses for 1-2 years. In some cases,
non-governmental organizations manage to raise money for the purpose
of hiring lawyers for asylum-seekers, but this was not possible in the
5.3 It is further pointed out that although the State party states that
asylum-seekers have successfully brought their cases before Norwegian
courts, statistics show that the majority of the cases receive negative
decisions. Counsel draws the attention of the Committee to, inter
alia, a case where an asylum-seeker from Kenya was expelled in March
1998, before his case had been examined by the courts and while his
request for injunction was still pending. On his return to Kenya, the
asylum-seeker was allegedly ill-treated. The case was not brought before
the court until February 1999. Although unable to attend his own court
case the plaintiff was nevertheless obliged to pay the legal expenses.
5.4 In light
of the State party's argument that oral testimony presented in court
is essential to fully assess a case, counsel points out that the author
has on several occasions expressed his willingness to give an oral account
before the Ministry of Justice, but he was never granted audience. With
reference to all the above, counsel concludes that all available domestic
remedies have been exhausted and that the communication should therefore
be declared admissible.
information submitted by the State party
6.1 By an additional
submission dated 29 October 1999, the State party informs the Committee
that according to the Immigration Act, an asylum-seeker has right to
free legal advice in relation to the administrative proceedings. This
right is limited to five hours of a lawyer's time in relation to the
application in the first administrative instance and an additional three
hours on administrative appeal. These limits are based on an evaluation
of what is needed to ensure proper assistance. It is possible to apply
for an extension of such assistance.
6.2 As to the
proceedings before the courts, an application for free legal aid
is to be made to the County Governor in accordance with the Legal
No.35 of 13 June 1998. In order to be eligible for legal aid the
applicant's income must not exceed a certain limit; this is normally
the case for
asylum-seekers, even if they are receiving employment income in addition
to the benefits granted by the State. If legal aid is granted, the
covers counsel's fees in whole or in part. In addition, the aid covers
court fees and other costs related to the proceedings, such as the
of an interpreter. The State party also notes that those granted
free legal aid in court proceedings must themselves pay a part of
costs, consisting of a moderate fixed basis fee amounting to approximately
45 US dollars, and an additional share of 25 per cent of the total
cost. However, the State party points out that this amount shall not
be paid if the person concerned has an income below a certain threshold.
6.3 The State
party states that it does not know whether the author has applied for
free legal aid in connection with contemplated court proceedings, but
the fact that free legal aid is not granted unconditionally when an
applicant brings an administrative appeal before the courts, cannot
exempt the author from the requirement to exhaust domestic remedies.
and proceedings before the Committee
considering any claims contained in a communication, the Committee must
decide whether or not the communication is admissible under article
22 of the Convention.
7.2 The Committee
notes that the State party challenges the admissibility of the communication
on the grounds that all available and effective domestic remedies have
not been exhausted. It further notes that the legality of an administrative
act may be challenged in Norwegian courts, and asylum-seekers who find
their applications for political asylum turned down by the Directorate
of Immigration and on appeal by the Ministry of Justice have the opportunity
to request judicial review before Norwegian courts.
7.3 The Committee
notes that according to information available to it, the author has
not initiated any proceedings to seek judicial review of the decision
rejecting his application for asylum. Noting also the author's information
about the financial implications of seeking such review, the Committee
recalls that legal aid for court proceedings can be sought, but that
there is no information indicating that this has been done in the case
in the light of other similar cases brought to its attention and in
view of the limited hours of free legal assistance available for asylum-seekers
for administrative proceedings, the Committee recommends to the State
party to undertake measures to ensure that asylum-seekers are duly informed
about all domestic remedies available to them, in particular the possibility
of judicial review before the courts and the opportunity of being granted
legal aid for such recourse.
7.5 The Committee
notes the author's claim about the likely outcome were the case to be
brought before a court. It considers, nevertheless, that the author
has not presented enough substantial information to support the belief
that such remedy would be unreasonably prolonged or unlikely to bring
effective relief. In the circumstances, the Committee finds that the
requirements under article 22, paragraph 5 (b), of the Convention have
not been met.
8. The Committee
(a) That the
communication as it stands is inadmissible;
(b) That this
decision may be reviewed under rule 109 of the Committee's rules of
procedure upon receipt of a request by or on behalf of the author containing
information to the effect that the reasons for inadmissibility no longer
(c) That this
decision shall be communicated to the State party and the author.
[Done in English,
French, Russian and Spanish, the English being the original version.]