CAT/C/66/D/729/2016
children’s voluntary return. According to the provisions of chapter 12, section 22 (1), of the
Aliens Act, the expulsion order will be time-barred on 11 May 2019. It is therefore of the
utmost importance to the State party that the Committee take a decision on the current case
before May 2019.
4.4
The State party does not contest that the complainant exhausted all domestic
remedies. However, the complainant failed to sufficiently substantiate his claims, and
therefore his complaint must be considered inadmissible under article 22 (2) of the
Convention.
4.5
Regarding the merits of the communication, the State party explains that, in
considering the present case, it examined the general human rights situation in the Russian
Federation and, in particular, the personal risk to the complainant of being subjected to
torture if returned there. The State party notes that it is incumbent on the complainant, who
must present an arguable case, to establish that he runs a foreseeable, real and personal risk
of being subjected to torture.1 In addition, while the risk of torture must be assessed on
grounds that go beyond mere theory, it does not have to meet the test of being highly
probable.
4.6
Regarding the current human rights situation in the Russian Federation, specifically
in the northern Caucasus, the State party is aware of the situation, and refers to the recent
reports, for example, by the International Crisis Group, 2 Amnesty International, 3 Human
Rights Watch4 and others. To briefly summarize the reports, the violence in the northern
Caucasus has substantially decreased during the past two years. Many radical groups have
left the Russian Federation for Iraq and the Syrian Arab Republic. While the violence has
been reduced, violations of human rights still occur. Law enforcement agencies are
responsible for enforced disappearances, unlawful detentions and torture and ill-treatment
of detainees.
4.7
The State party concludes that the current situation in the Russian Federation in
general is not such that there is a general need to protect asylum seekers from that country,
although it “does not wish to underestimate” the legitimate concern about the human rights
situation in the northern Caucasus. However, the current lack of respect for human rights in
and of itself is not sufficient, and the complainant must show a personal and real risk of
being subjected to treatment contrary to article 3 of the Convention.
4.8
The State party submits that several provisions of the Aliens Act reflect the
principles contained in article 3 of the Convention and, therefore, the State party authorities
apply the same kind of test when considering asylum applications. According to sections 1
to 3 of chapter 12 of the Aliens Act, a person seeking asylum cannot be returned to a
country where there are reasonable grounds to assume that he or she would be in danger of
being subjected to the death penalty, corporal punishment, or torture or other degrading
treatment or punishment.
4.9
The Migration Agency held multiple oral interviews with the complainant and his
children. An introductory interview was held on 3 September 2013. On 4 October 2013, the
Agency held another interview and a “child-focused parental interview” of the complainant
and his two children. On 10 October 2013, another interview lasted almost four hours. In
accordance with chapter 1, section 10, of the Aliens Act, special attention was given to the
“health and development” and the best interests of the children. The complainant was
represented by public counsel, and communicated through an interpreter. The complainant
was further given an opportunity to scrutinize and comment on written records of all the
interviews.
4.10 The State party therefore claims that both the Migration Agency and the Migration
Court had sufficient information to make a well-informed, transparent and reasonable risk
1
2
3
4
The State party refers, inter alia, to H.O. v. Sweden, communication No. 178/2001 (A/57/44), para.
6.12.
“The North Caucasus Insurgency and Syria: An Exported Jihad?”, 16 March 2016.
“Russian Federation” in Amnesty International Report 2015/16: The State of the World’s Human
Rights (London, 2016).
“Russia” in World Report 2016: Events of 2015 (New York, 2016).
3