UN Committee Against Torture Challenges
Stringent Credibility Tests,
The cases of T v. Sweden and A v. Switzerland
(from Iranian Refugees At Risk Winter97/Spring 98)
by Deljou Abadi
In T. v. Sweden1 and A. v. Switzerland2, the UN Committee Against Torture [hereinafter "Committee"] accepted the claims of two Iranian asylum seekers because the State Parties had applied credibility tests which were too stringent.
In order to determine whether a refugee claimant has a well-founded fear of persecution within the meaning of the UN Convention's definition of refugee, decision-makers must decide if they believe the claimant's evidence. In making this determination, the decision-maker must assess the credibility of the claimant, and if available, documentary evidence.
It is widely understood that refugees who are fleeing persecution are seldom able to provide independent evidence such as copies of arrest warrants, prison records, court records or press reports of their arrest to document their claim. The decision maker responsible for adjudicating refugee claims must, therefore, frequently rely solely on the claimant¹s testimony and demeanor when deciding the claim. In the absence of corroborative evidence, the outcome of the claim will depend entirely on the credibility finding reached by the decision maker.
A claimant¹s own testimony may be sufficient when the testimony is believable, consistent and sufficiently detailed to provide a plausible basis for his or her fear. However, assessment of a claimant¹s credibility presents a particularly formidable task because it involves a cross-cultural and interpreted examination of a person who is probably suffering from trauma and suspect of the proceedings.
The potentially devastating results of an adverse credibility finding require the assessment to be conducted responsibly and in a reasonable manner. It is beyond the scope of this article to investigate all the issues involved in conducting a credibility assessment. General guidelines require that the test must be conducted in regard to truly relevant matters and must include all of the evidence. In case of an adverse credibility finding the decision must give its reasons in clear and unmistakable terms.
Recent decisions denying refugee status show that governments have been increasingly straying from the acceptable guidelines in order to implement their more restrictive immigration policies. For example, Sweden has been strongly criticized for placing an unfair burden of proof on asylum seekers. Swedish authorities are known to show a propensity to discredit asylum seekers who alter or amend their stories in even minor ways after the initial interview and to view with skepticism an applicant's attempts to clarify misunderstandings and mistranslations.3
However, the Committee which is responsible to ensure that the Convention Against Torture and Other Cruel or Inhuman or Degrading Treatment or Punishment [hereinafter "Convention"]4 [see box] is observed and implemented by the State Parties has responded by providing a more responsible and reasonable option for assessing the credibility of refugee claimants whose claims have been denied in domestic administrative and/or judicial proceedings. The Convention allows a refugee claimant to lodge a complaint to the Committee and challenge his or her deportation order. [see box] The remainder of this article highlights the reasons cited by the Committee in rejecting the findings of the Swedish and Swiss authorities respectively in the cases of T. and A.
The UN Convention Against Torture
The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Convention) was adopted in 1984 by the United Nations General Assembly to codify universally applicable standards against the practice of torture in the world. The Committee Against Torture (the Committee) is the monitoring body established to ensure that the Convention is observed and implemented. Like other international instruments relating to human rights, the Convention gives individuals the right to lodge complaints to the Committee.
In cases concerning a forced return to the country of origin the Committee must decide, pursuant to Article 3 of the Convention, whether there are substantial grounds for believing that the complainant would be in danger of being subject to torture upon return. Article 3 of the Convention states:
1. No State Party shall, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
Torture is defined in Article 1 of the Convention as any acts by which severe pain or suffering whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain and suffering is inflicted by or at the instigation of or with the consent of or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidential to lawful sanctions.
As the newest of the treaty based mechanism for making human rights complaints within the United Nations system, the case load of the Committee is still relatively light (less than 100). But interestingly most of this caseload seems to be asylum and expulsion related. So far the Committee has concluded about a dozen of such cases. In seven of them it has found violations of the Convention by the State Parties.
The UN Committee Against Torture
Article 22 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment sets an optional procedure which gives the Committee Against Torture jurisdiction over individual complaints ("communications"). For the Committee to be able to admit and examine individual communications against a State Party, that State Party must have expressly recognized the Committees competence in this regard under article 22. Thirty-nine out of 102 States that have acceded to or ratified the Convention have declared that they recognize the competence of the Committee.
A communication may be submitted by an individual who claims to be the victim of a violation of the Convention by a State Party. If the alleged victim is not in a position to submit the communication, relatives or representatives may act on his or her behalf. A model communication has been produced by the Committee.
A communication must meet the criteria for the admissibility before the Committee examines its merits. For a communication to be declared admissible it must not be anonymous, constitute an abuse of the right of submission, or have been examined under another international procedure. Moreover, all available domestic remedies must have been exhausted first unless unreasonably prolonged or unlikely to bring effective relief. A case that has been declared inadmissible on the ground that domestic remedies have not been exhausted can be re-submitted at a later date. At any stage of the procedure, if the Committee feels that the claim is bona fide, it may request the State Party to take steps to avoid possible irreparable damage. In cases of an imminent danger of deportation, the Committee may request the State Party not to expel the complainant while the case is under consideration.
Once a case has been declared admissible, that decision and any submissions received from the complainant are sent to the State Party, which has six months in which to respond in writing. The Committee may establish a working group of up to five members to assist it in considering individual complaints. The Committee may also invite the parties to attend a meeting in order to provide further clarification or answer questions considering a communication. All proceedings considering individual communications are confidential.
The proceedings conclude with the transmission of the final views to the author of the communication and the State concerned. The State is invited to inform the Committee in due course, of the actions it takes in conformity with the Committee¹s Views.
In cases involving deportation of failed asylum applicants, the finding of a violation of article 3 by the Committee does not require the State party to modify its decision concerning the granting of asylum. It only requires a State Party not to deport the author. In addition, in contrast to the European human rights system and like other UN bodies, the Views of the Committee may not be binding, but according to many commentators, on balance they can be just as effective as States tend to assume their obligations and comply.
T. v. Sweden
Mr. T. applied for asylum in Sweden in July 1990. The Swedish Immigration Board refused his application in November 1990 and ordered his expulsion. T. applied to the Aliens Appeal Board which dismissed his appeal in July 1992. He filed a subsequent application to the Immigration Board which was also rejected. He then appealed to the Appeal Board which rejected his second application in 1995. T. then sought consideration by the Committee.
The Swedish authorities rejected T.'s claim concluding that he lacked credibility because of the inconsistencies in his statements throughout the asylum and appeal procedures. These inconsistencies as noted in the Committee's Views included the following:
As acknowledged by T., inconsistencies existed in his statements through-out the proceedings. The question was, however, whether or not the Swedish authorities were correct in applying a simple consistency test to T.'s statements, regardless of his special conditions, and whether the inconsistencies in the application were material.
The Committee examined the totality of the circumstances and succinctly stated that:6
"complete accuracy is seldom to be expected by victims of torture." [emphasis added]
The Committee discounted the inconsistencies noting that they:7
"do not raise doubts about the general veracity of his claims, especially since it has been demonstrated that the author suffers from Post Traumatic Stress Disorder." [emphasis added]
Finally, the Committee reached the conclusion that the medical evidence out weighed the inconsistencies T. made when describing the methods of his torture.
A. v. Switzerland
Mr. A. applied for asylum in Switzerland in May 1990. In August 1992, his application was refused by the Federal Office for Refugees, which considered his story not credible and full of inconsistencies. The Appeal Commission rejected his appeal in January 1993. In April 1993, he filed a request for reconsideration based on his activities in Switzerland for the Armenian and Persian Aid Organization (APHO), an organization in Switzerland which is considered illegal in Iran. By a decision of May 5, 1993, the Federal Office for Refugees refused to consider his request for review.
On August 10, 1994, the Appeal Commission also declared his application to be ill-founded. Under article 8 s(a) of the Swiss Asylum Act, such "subjective grounds" are considered not relevant to the granting of asylum. Subsequently A. was contacted by the police for the purpose of the preparation of his departure from Switzerland. He therefore lodged a complaint with the Committee on October 26, 1995. The Swiss government contested the admissibility of the application, holding that an applicant who invokes "subjective grounds" may nevertheless remain in Switzerland for humanitarian reasons (Asylum Act, art. 17, par.. 2) or temporary admission (Asylum Act, art. 18, par.. 1). At its sixteenth session, the Committee decided to suspend consideration of A.'s communication pending the result of his requests for reconsideration (temporary residence) in the light of his political activities in Switzerland. The Committee's considerations were resumed in August 1996.
As reflected in the Committee's Views, the Swiss authorities found the first part of A.’s claim--his political activities in Iran as a sympathizer of the People's Mujahedin of Iran, his arrest in 1981 for 25 days, and in 1983 for two years, and his alleged fear of being identified in 1989 for an activity he committed in 1982--to be "illogical", "totally unrealistic", "lacking substantiation" and "at variance with the facts". The grounds based on which these conclusions were reached for A. included:
Based on such assumptions, the Swiss Government submitted that A. has failed to establish that he has ever ³engaged in the political activities in question, or even that he was a member of a party that opposed the existing political regime² and that therefore this Government cannot seriously take into account his allegation of a risk of inhuman treatment were he to return to Iran.
The second part of A.'s claim involving his activities in Switzerland with APHO was also rejected by the Swiss Government because A. "could not confirm" his allegation that "his identity is very probably known to the Iranian authorities." In this regard, the Government pointed to the insufficiency of the information obtained from police regarding two incidents in 1991 and 1992 alleged by A. in which he claimed members of that organization clashed with Iran's agents in public. The Government said that because by the time the police arrived at the scene of the event the "skirmish" was over and only the members of the organization were present, it "considers it at least doubtful whether the events in question occurred." The Government concluded that therefore "the events in question cannot automatically be considered to constitute a decisive ground in respect of article 3 of the Convention."
Contrary to the Swiss Government's conclusions the Committee opined that:8
"even though there may be some remaining doubt as to the veracity of the facts adduced by the author of a communication, it must ensure that his security is not endangered. In order to do this, it is not necessary that all the facts invoked by the author should be proved; it is sufficient that the Committee should consider them to be sufficiently substantiated and reliable." [emphasis added]
After noting the State Parties concerns regarding "inconsistencies and contradictions" in A.'s statements, the Committee stated that there may indeed be some doubt" about A.'s statements, but not to the extent to "cast doubt on the veracity of his allegations" as the State party has concluded. The Committee, therefore, expressed that A.'s "membership in the People's Mujahedin Organization, his participation in the activities of that organization and his record of detention in 1981 and 1983 must be taken into consideration in order to determine whether he would be in danger of being subjected to torture if he returned to his country."
In regard to the second part of A.'s claim, the Committee, went on to say that: "there can be no doubt about the nature of the activities he engaged in Switzerland for APHO, which is considered an illegal organization in Iran." This opinion was construed from the State party's failure to demonstrate proper foundation and trustworthy evidence to the contrary of A.'s allegations regarding his activities in Switzerland. In fact, the Committee noted that the State party's limited investigations confirmed those activities by A. and that the State party did not "deny that skirmishes occurred between APHO representatives and other Iranian nationals in Bern in June 1992." Consequently, the Committee expressed that in this circumstances, it "must take seriously the author's statement that individuals close to the Iranian authorities threatened APHO members and the author himself on two occasions, in May 1991 and June 1992."9
The Committee explicitly challenged the Swiss authorities¹ refusal to take up A.'s request for review based on his activities in Switzerland by noting that:10
"[t]he ‘substantial grounds’ for believing that return or expulsion would expose the applicant to the risk of being subjected to torture may be based not only on acts committed in the country of origin, in other words, before his flight from the country, but also on activities undertaken by him in the receiving country: in fact, the wording of article 3 does not distinguish between the commission of acts, which might later expose the applicant to the risk of torture, in the country of origin or in the receiving country. In other words, even if the activities of which the author is accused in Iran were insufficient for article 3 to apply, his subsequent activities in the receiving country could prove sufficient for application of that article." [emphasis added]
In addition to examining each individual's evidence, in both cases, the Committee also put into consideration:11
"the serious human rights situation in Iran, as reported inter alia to the Commission on Human Rights by the Commission's Special Representative on the situation of human rights in Iran ... in particular, the concern expressed by the Commission, especially about the large number of cases of cruel, inhuman or degrading treatment or punishment."12
Consequently, the Committee found that the forced return of both refugee claimants to Iran would violate the State Parties' obligation under Article 3 of the Convention.
The finding of a violation of Article 3 by the Committee does not require the State Party to reverse its decision on an asylum claim. It only requires a State Party not to deport the claimant. However, the Committee's findings are significant because they challenge the arbitrary and capricious denials of asylum cases by the State Parties. The conclusions reached by the Committee in both T. and A. are reassuring because they recognize the proper manner of weighing inconsistencies in a claimant's story. In addition, they emphasize that the responsibilities of governments to protect refugee claimants are not minimized by factual inconsistencies in the claim.
The Committee has been critical of the egregious practices of member States in several other cases. [see box] It is hopeful that this jurisprudence will have a broad impact and influence international opinion. These efforts of the Committee make it more possible to hold governments accountable to the international obligations they proclaim to respect.
Important Findings of the Committee Against Torture
The approach and findings of the Committee Against Torture have been considered as milestones in enforcing the rule of non-refoulement (the prohibition not to return an asylum seeker to a country where s/he is at-risk of persecution). Some important findings of the Committee in the taking of a decision in accordance with article 3 of the Convention include:
Decisions referred to:
M. v. Switzerland, No. 13/1993, K. v. Canada, No. 15/1994, A. v. Switzerland, No. 21/1995, A. v. Switzerland, No. 34/1995, P. v. Sweden No. 39/1996, K. v. Sweden, No. 41/1996, T. v. Sweden, No. 43/1996.
1. Views of the Committee against Torture under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment - Seventeenth session - concerning Communications No. 43/1996, Date of communication: 7 March 1996 (initial submission), Date of decision: 15 November 1996.
2. Views of the Committee against Torture under article 22, paragraph 7, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment - Eighteenth session - concerning Communications No. 34/1995, Date of communication: 26 October 1995, Date of decision 9 May 1997.
3. Human Rights Watch/Helsinki, Swedish Asylum Policy in Global Human Rights Perspective, September 1996 Vol. 8, No. 14(D).
4. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987.
5. As stated in the Committee's View and indicated in an unofficial translation of the Appeal boards¹ decision in the Human Rights Watch September 1996 report (above note 3), the medical records showed different accounts by T. concerning the objects used to inflict injuries during his torture. T. variably stated that the burn on the back of his tight was inflicted by a hot metal object, and by a gas burner. He also stated that the cut on his shoulder was inflicted by a key, a knife and a sharp object.
6. above note 1 par. 10.3.
8. above note 2, par. 9.6.
9. above note 2, par. 9.7.
10. above note 2, par. 9.5.
12. above notes 1 & 2, par. 10.4 and, par. 9.9 respectively.