CAT/C/71/D/792/2016
Convention. She cites a number of reports published from 2014 to 2016 by non-governmental
and governmental organizations6 and the media according to which lesbian, gay, bisexual,
transgender and intersex persons in Uganda have experienced discrimination, harassment and
attacks even after the Anti-Homosexuality Act was nullified by the Constitutional Court of
Uganda in August 2014. Moreover, according to the reports, lesbians face arrest and
incarceration under section 145 of the Penal Code, are subjected to physical and verbal abuse
and may endure “corrective rape”. Abuses of the rights of lesbian, gay, bisexual, transgender
and intersex persons have also reportedly been committed or condoned by the Ugandan
police, although on some occasions police officers have protected lesbian, gay, bisexual,
transgender and intersex persons. The complainant submits, against this background, that she
runs an ongoing risk of being subjected to the kind of “curative rape” to which she has already
fallen victim.
State party’s observations on admissibility and the merits
4.1
In its observations dated 19 January 2018, the State party observes that, following the
complainant’s communication to the Committee, the Refugee Appeals Board reopened the
case and adopted a new substantive decision on 30 May 2017. The State party submits that
the complainant’s communication contains no new information about her personal
circumstances or about the grounds on which she is requesting asylum beyond the
information already considered by the Board in its decisions of 30 September 2014, 5
December 2016 and 30 May 2017. In its decision of 30 May 2017, the Board took into
account the background information on Uganda referred to by the complainant, as well as
additional and more recent background information. The State party concludes that the merits
of all of the complainant’s claims have been thoroughly examined by the Board. In its
assessment of whether the complainant is at risk of abuse under article 3 of the Convention
if deported, the Board considered the following: (a) the abuse to which the complainant was
subjected in Uganda and the risk of abuse if deported; (b) the complainant’s activities for
organizations advocating the rights of lesbian, gay, bisexual, transgender and intersex
persons in Denmark; (c) the inclusion, in an article posted on a Ugandan website, of the
complainant’s name and photograph; and (d) the general conditions for lesbians in Uganda,
both in themselves and combined with the complainant’s specific circumstances.
4.2
The State party maintains that, given the thorough consideration of the complainant’s
case by domestic authorities, and for the additional reasons stated in its observations on the
merits, the complainant has failed to establish a prima facie case for the purpose of
admissibility. The State party considers that the complainant has not established substantial
grounds for believing that she would be in danger of being subjected to torture or other cruel,
inhuman or degrading treatment or punishment if deported.
4.3
Should the Committee find the communication admissible, the State party submits
that the complainant has not sufficiently established that her return to Uganda would
constitute a violation of article 3 of the Convention.
4.4
The State party observes that its obligations under article 3 of the Convention are
reflected in section 7 (1)–(2) of the Danish Aliens Act and that, when assessing the risk of a
violation of article 3 of the Convention, the domestic authorities rely on criteria elaborated
by the Committee in paragraphs 5 to 7 of its general comment No. 1 (1996) 7 and in its
jurisprudence. The complainant did not meet the criteria for finding a violation of article 3 as
she did not present an arguable case establishing that she would face a foreseeable, real and
personal risk of being subjected to torture.
4.5
Referring to paragraph 9 of the Committee’s general comment No. 1 (1996), the State
party submits that the Committee is not an appellate, a quasi-judicial or an administrative
body and that considerable weight should be given to findings of fact made by organs of the
State party. The State party draws the Committee’s attention to the fact that the complainant’s
6
7
4
Reference is made to reports by Human Rights Watch, Amnesty International, Freedom House,
Chapter Four Uganda, the Organization for Refuge, Asylum and Migration and Bertelsmann Stiftung,
as well as the Department of State of the United States of America, the Home Office of the United
Kingdom of Great Britain and Northern Ireland and the Finnish Immigration Service.
Superseded by general comment No. 4 (2017).