CAT/C/22/D/120/1998
page 4
circumstances did not raise a “serious question to be tried”. Special leave
was sought to appeal to the full bench of the High Court, but that request was
also dismissed.
2.7
The author states that he has exhausted all available domestic remedies
and underlines that, while he could still technically seek special leave from
the High Court, his imminent removal would stymie any such application. He
further indicates that the legal representatives initially provided to him by
the authorities clearly failed to act in their client’s best interest. As the
submitted documents reveal, the initial statement and the subsequent legal
submissions to RRT were undoubtedly inadequate and the representatives failed
to be present during the author’s hearing with the Tribunal in order to ensure
a thorough investigation into his history and the consequences of his
membership of the Shikal clan.
The complaint
3.1
The author claims that his forced return to Somalia would constitute a
violation of article 3 of the Convention by the State party and that his
background and clan membership would render him personally at risk of being
subjected to torture. He fears that the Hawiye clan will be controlling the
airport on his arrival in Mogadishu and that they will immediately ascertain
his clan membership and the fact that he is the son of a former Shikal elder.
They will then detain, torture and possibly execute him. He is also fearful
that the Hawiye clan will assume that the author, being a Shikal and having
been abroad, will have money, which they will attempt to extort by torture and
other means.
3.2
It is emphasized that in addition to the particular circumstances
pertaining to the author’s individual case, Somalia is a country where there
exists a pattern of gross, flagrant or mass violations of human rights. In
expressing its opinion in the author’s case, the Regional Office of UNHCR for
Australia, New Zealand, Papua New Guinea and the South Pacific stated that
“(w)hile it is true that UNHCR facilitates voluntary repatriation to so-called
Somaliland, we neither promote nor encourage repatriation to any part of
Somalia. In respect of rejected asylum-seekers from Somalia, this office does
urge States to exercise the utmost caution in effecting return to Somalia.” 1
Reference is also made to the large number of sources indicating the
persisting existence of torture in Somalia, which would support the author’s
position that his forced return would constitute a violation of article 3 of
the Convention.
State party’s observations
4.1
On 18 November 1998, the Committee, acting through its Special
Rapporteur on new communications, transmitted the communication to the State
party for comment and requested the State party not to expel the author while
his communication was under consideration by the Committee.
4.2
By submission of 16 March 1999, the State party challenged the
admissibility of the communication, but also addressed the merits of the case.