CAT/C/31/D/210/2002
Page 4
The State party’s observations on admissibility and merits and the petitioners comments
thereon
4.1
By note verbale, of 12 September 2002, the State party provided its submission on
the admissibility and merits of the communication. It submits that the complainant has
failed to establish a prima facie case, for purposes of admissibility. If the Committee does
not dismiss the communication for that reason, the State party submits that no violation
of the provisions of the Convention occurred in relation to the merits of the case.
4.2
The State party describes the organization and decision-making process of the
Refugee Board in detail and submits, inter alia, that, as is normally the case, the
complainant was assigned an attorney who had an opportunity as well as the complainant
to study the files of the case and the background material before the meeting of the
Board. The hearing was also attended by an interpreter and a representative of the
Danish Immigration Service.
4.3
With respect to the application of article 3 of the Convention to the merits of the
case, the State party underlines that the burden to present an arguable case is on the
complainant, in accordance with paragraph 5 of the General Comment on the
Implementation of article 3 adopted by the Committee on 21 November 1997. By
reference to this General Comment, the State party points out that the Committee is not
an appellate, quasi-judicial or administrative body but rather a monitoring body. The
present communication does not contain any information that had not already been
examined extensively by the Danish Immigration Service and the Refugee Board. The
State party submits that, in its view, the complainant is attempting to use the Committee
as an appellate body in order to obtain a new assessment of a claim already thoroughly
considered by Danish immigration authorities.
4.4
As to whether there are substantial grounds for believing that the complainant
would be in danger of being subjected to torture if returned to the Russian Federation, the
State party refers to the decision of the Refugee Board in its entirety. In the decision of
the Refugee Board of 21 March 2002, it was held that the complainant and his wife had
“not rendered probable in a convincing and credible way that after their return to Russia
in 1994 and until their departure in 1999 they had been subjected to asylum-relevant
outrages, or that upon a return they would be at such risk thereof that there was a basis
for granting them residence permits under section 7 of the Aliens Act.”
4.5
The State party submits that the Refugee Board’s assessment corresponds to the
practice of the Committee in considering past torture as one of the elements to be taken
into account when considering whether a complainant would risk being tortured if
returned to his country of origin. In this regard, the Board attached decisive importance to
the opinion of 21 December 2000, stating, inter alia, that no obvious physical or mental
effects of torture as stated by the complainant were found at his examination. The Board
therefore set aside the complainant’s statement of having been subjected to torture.