CAT/C/22/D/62/1996
page 4
2.9
On 6 November 1996, the author further appealed for judicial review to
the Budapest Municipal Court, referring to the fact that the reasoning in the
administrative decisions of the first and second instance was entirely
different, which proved that the facts of the case had not been properly
examined. Furthermore, in his appeal the author underlined that during the
administrative examination of his case, a final expulsion order against him
had been pending. According to the author, the expulsion order contravened
article 32, paragraph 1, of the Aliens Act which stipulates that “(n)o alien
shall be refouled or expelled to a country or to the frontiers of a territory
where he would be threatened with persecution on account of his race,
religion, nationality, membership of a social group or political opinion, or
to the territory of a state or frontiers of a territory where there are
substantial grounds for believing that the refouled or expelled aliens would
be subjected to torture, inhuman or degrading punishment ...”. The author
maintained that the unlawfulness of the expulsion order had not been examined
by the Office for Refugees and Migration Affairs. At the time of the author’s
initial submission to the Committee, the appeal for judicial review was still
pending before the Budapest Municipal Court.
The complaint
3.1
The author submits that Turkey is a country where torture is
systematically practised and that there are substantial grounds for believing
that he would be subjected to torture, inhuman or degrading treatment or
punishment in view of his past imprisonment and treatment as well as his
subsequent involvement with the armed wing of the PKK.
3.2
The author claims that the Hungarian immigration authorities have not
examined his case and the conditions prevailing in his country of origin with
the necessary care. The judicial authorities took into consideration the
Convention relating to the Status of Refugees, as incorporated in domestic
law, but not the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment and its absolute prohibition of return or
expulsion of a person to a State or to the frontiers of a territory where
there is danger that the person would be subjected to torture or other cruel,
degrading or inhuman treatment.
3.3
The author further claims that the appeal for judicial review, pending
at the time of his initial submission to the Committee, could not be
considered as an effective remedy since the review of administrative decisions
by Hungarian courts is limited to examining whether there has been a violation
of procedure or substantive domestic legal regulations and the international
practice is not taken into account. If the rejection of his application for
asylum is confirmed he could theoretically nevertheless be granted temporary
permission to stay in the country, in accordance with the principle of
non-refoulement. However, the author draws the attention of the Committee to
the fact that aliens who cannot be expelled solely on the basis of
non-refoulement have no further rights, including to employment, income or
social benefits, or temporary residence permits.