UNITED NATIONS CCPR International covenant on civil and political rights Distr. RESTRICTED^* CCPR/C/82/D/1222/2003 9 December 2004 Original: ENGLISH HUMAN RIGHTS COMMITTEE Eighty-second session 18 October - 5 November 2004 VIEWS Communication No. 1222/2003 Submitted by: Jonny  Rubin  Byahuranga  (represented  by  counsel, Mr. Tyge Trier) Alleged victim: The author State Party: Denmark Date of communication: 15 August 2003 (initial submission) Document references: Special Rapporteur’s rule 91 decision, transmitted to the State party on 27 November 2003 (not issued in document form) Date of adoption of Views: 1 November 2004 On  1  November  2004,  the  Human  Rights  Committee  adopted  the  annexed  draft  as  the Committee’s   Views,   under   article   5,   paragraph   4,   of   the   Optional   Protocol   in   respect   of communication No. 1222/2003.  The text of the Views is appended to the present document. [ANNEX] * Made public by decision of the Human Rights Committee.

CCPR/C/82/D/1222/2003 Page 2 ANNEX Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political rights Eighty-second session concerning Communication No. 1222/2003^** Submitted by: Jonny  Rubin  Byahuranga  (represented  by  counsel, Mr. Tyge Trier) Alleged victim: The author State Party: Denmark Date of communication: 15 August 2003 (initial submission) The Human Rights Committee, established under article 28 of the International Covenant on Civil and Political Rights, Meeting on 1 November 2004, Having  concluded  its  consideration  of  communication  No. 1222/2003,  submitted  to  the Human Rights Committee on behalf of Jonny Rubin Byahuranga under the Optional Protocol to the International Covenant on Civil and Political Rights, Having  taken  into  account  all  written  information  made  available  to  it  by  the  author  of the communication, and the State party, Adopts the following: ** The  following  members  of  the  Committee  participated  in  the  examination  of  the  present communication:  Mr. Abdelfattah Amor, Mr. Franco Depasquale, Mr. Maurice Glèlè Ahanhanzo, Mr. Walter Kälin, Mr. Ahmed Tawfik Khalil, Mr. Rajsoomer Lallah, Mr.  Rafael Rivas Posada, Sir   Nigel   Rodley,   Mr.   Martin   Scheinin,   Mr.   Ivan   Shearer,   Mr. Hipólito   Solari -Yrigoyen, Ms. Ruth Wedgwood, Mr. Roman Wieruszewski and Mr. Maxwell Yalden. The  text  of  an  individual  opinion  signed  by  Committee  members  Ms.  Ruth  Wedgwood and Mr. Maxwell Yalden is appended to the present document.

CCPR/C/82/D/1222/2003 Page 3 Views under article 5, paragraph 4, of the Optional Protocol 1.1 The author of the communication is Jonny Rubin Byahuranga, a Ugandan national born on 28 October 1956, currently residing in Denmark and awaiting expulsion to Uganda. He claims to be victim of a violation by Denmark¹ of articles 7, 17 and 23, paragraph 1, of the Covenant. He is represented by counsel. 1.2 On 27 November 2003, the communication was transmitted to the State party. On 7 July 2004, the author requested the Committee to issue a request for interim measures under Rule 86 of its rules of procedure, asking the State party not to deport him while his communication was under  consideration  by  the  Committee.  On  9  July  2004,  the  Committee,  through  its  Special Rapporteur on New Communications, requested the State party  not to deport the author before the Committee has had an opportunity to address the continued need for interim measures. The State party acceded to this request. On 30 July 2004, the Committee informed the State party of its decision to extend its temporary request not to deport the author until the closing date of the Committee’s 82^nd session, i.e. 5 November 2004. Facts as submitted by the author 2.1 The author served as an officer in the Ugandan army during the rule of Idi Amin. He fled Uganda in 1981, after he had been unlawfully detained and  allegedly tortured several times by military  forces.  In  December  1984,  he  entered  Denmark,  where  he  was  granted  asylum  on  4 September 1986, under Section 7 (1) (ii)² of the Aliens Act. On 24 July 1990, he was issued a permanent residence permit. 2.2 In  1997,  the  author  married  a  Tanzanian  national.  Together  with  the  author’s  daughter from a former marriage (born in 1980), his wife united with him in Denmark in 1998. She has meanwhile  become  a  Danish  citizen  and  has  two  children  with  the  author,  who  were  born  in Denmark in 1999 and 2000, respectively. 2.3 By judgment of 23 April 2002, the Copenhagen City Court convicted the author of drug- related offenses (Section 191 of the Danish Criminal Code), and sentenced him to two years and six  months’  imprisonment.  It  also  ordered  the  author’s  expulsion  from  Denmark,³  finding  that 1 The Covenant and the Optional Protocol entered into force for the State party on 23 March 1976. 2 Section 7 (1) of the Aliens Act then in force read: “Section 7. (1) Upon application, a residence permit shall be issued to an alien in Denmark or at the border, (i) if the alien falls within the provisions of the Convention on the Status of Refugees of 28 July 1951; or (ii) if for reasons similar to those listed in the Convention or for other weighty reasons, the alien cannot be required to return to his country of origin.” 3 Section 22 of the Aliens Act then in force read, in pertinent parts: “Section 22. An alien who has lawfully stayed in Denmark for more than the past seven years or an alien issued with a residence permit under sections 7 or 8 may be expelled if: […] (iv) the alien is sentenced, pursuant to the Drugs and Narcotics Act or pursuant to sections 191 or 191a of the Criminal Code, to imprisonment […].”

CCPR/C/82/D/1222/2003 Page 4 such expulsion would not amount to a violation of the right to family life under article 8 of the European  Convention,  and  permanently  barred  him  from  re-entering  Denmark.  It  based  its decision   on   an   opinion   dated   19   April   2002   of   the   Danish   Immigration   Service,   which considered that there were no circumstances which would constitute a decisive argument against the author’s expulsion within the meaning of Section 26⁴ of the Aliens Act. It based itself on (a) the  fact  that,  at  the  age  of  45  years,  the  author  had  resided  in  Denmark  for  17  years  and  four months; (b) the author’s good health, i.e. the absence of any diseases which could not be treated in Uganda; (c) the fact that his expulsion would not affect the right of his spouse and children to continue  residing  in  Denmark,  given  that  his  wife  and  his  older  daughter  had  meanwhile  been granted permanent residence permits; (d) the absence of any risk that, in cases other than those mentioned  in  Section  7  (1)  and  (2)  of  the  Aliens  Act,  he  would  be  ill-treated  in  Uganda.  The Immigration  Service  did  not  object  to  the  prosecutor’s  claim  to  expel  the  author,  despite  the latter’s loose ties with his Ugandan family and the fact that he had not returned to Uganda since 1981. 2.4 On 3 September 2002, the High Court of Eastern Denmark dismissed the author’s appeal against the decision of the Copenhagen City Court. On 12 November 2002, the Danish Board of Appeal rejected the author’s application for leave to appeal against the High Court’s judgment. The complaint 3.1 The author claims (a) that his expulsion would amount to a violation of his rights under article  7  of  the  Covenant,  as  it  would  expose  him  to  a  real  and  immediate  danger  of  being subjected  to  ill-treatment  upon  return  to  Uganda;  and  (b)  that  it  would  constitute  an  arbitrary interference with his right to family life under article 17 of the Covenant and a violation of the State party’s duty to respect and protect the family as the natural and fundamental group unit of society, as prescribed by article 23, paragraph 1. 3.2 The  author  emphasizes  that  he  has  lived  in  Denmark  for  18  years  without  ever  having returned to Uganda, that he has no contact with relatives in Uganda, that his wife and  children 4 Section 26 of the Aliens Act then in force read: “Section 26. (1) In deciding on expulsion, regard must be had to the question whether the expulsion must be presumed to be particularly burdensome, in particular because of: (i) the alien’s ties with the Danish community […]; (ii) the duration of the alien’s stay in Denmark; (iii) the alien’s age, health and other personal circumstances; (iv) the alien’s ties with persons living in Denmark; (v) the consequences of the expulsion for the alien’s close relatives living in Denmark; (vi) the alien’s weak or non-existing ties with his country of origin or any other country in which he may be expected to take up residence; and (vii) the risk that, in cases other than those mentioned in section 7 (1) and (2), the alien will be ill-treated in his country of origin or any other country in which he may be expected to take up residence. (2) An alien may be expelled under section 22 (iv) to (vi) unless the circumstances mentioned in subsection (1) constitute a decisive argument against such expulsion.”

CCPR/C/82/D/1222/2003 Page 5 are  living  with  him;  the  two  youngest  children  were  born  in  Denmark  and  have  never  been  to Uganda. State party's observations on admissibility and merits 4.1 On 11 February 2004, the State party submitted its observations on the admissibility and merits  of  the  communication,  challenging  the  admissibility  because  of  the  author’s  failure  to exhaust domestic remedies, and denying violations of articles 7, 17 and 23, paragraph 1.   4.2 Regarding  exhaustion  of  domestic  remedies,  the  State  party  submits  that,  on  31  July 2003,  the  author  requested  the  Copenhagen  police  to  place  the  matter  of  revocation  of  the expulsion  order  before  a  tribunal,  for  review  under  Section  50  (1)⁵  of  the  Aliens  Act.  On  29 August 2003, the police requested the Danish Immigration Service to provide another opinion on the  desirability  of  the  author’s  expulsion.  On  18  September  2003,  the  Immigration  Service reiterated  that  it  was  not  in  possession  of  any  information  as  to  whether  the  author  would  be exposed  to  particularly  burdensome  criminal  sanctions  upon  return  to  Uganda,  or  whether  he would  be  at  risk  of  double  jeopardy  for  the  same  offense  for  which  he  had  been  convicted  in Denmark.  However,  it  had  requested  the  Danish  Foreign  Ministry  to  investigate  the  risk  of double jeopardy in Uganda. Apart from such risk, possible grounds for asylum set out in Section 7 (1) and (2) of the Aliens Act could not be taken into account, in accordance with Section 26 (1) (vii) of the Act. The Immigration Service concluded that, in the light of the nature of the offenses committed  by,  and  the  severity  of  the  prison  sentence  imposed  on,  the  author,  his  personal circumstances did not outweigh the arguments for his expulsion. 4.3 The State party adds that, on 11 November 2003, the Copenhagen City  Court affirmed the expulsion order against the author, finding that its revocation was not required under article 3 of the European Convention on Human Rights, since the author still could invoke Section 31⁶ of 5 Section 50 (1) of the Aliens Act reads: “(1) If expulsion under section 49 (1) has not been enforced, an alien claiming that a material change in his circumstances has occurred, cf. section 26, can request that the public prosecutor put the question of resumption [revocation] of the expulsion order before court. A request to that effect must be submitted not earlier than 6 months and not later than 2 months before the date when enforcement of the expulsion can be expected. If the request is submitted at a later date, the court may decide to examine the case if it deems it to be excusable that the time-limit has been exceeded.” 6 Section 31 of the Aliens Act reads: “(1) An alien may not be returned to a country where he will be at risk of the death penalty or of being subjected to torture or inhuman or degrading treatment or punishment, or where the alien will not be protected against being sent on to such country. (2) An alien falling under section 7 (1) may not be returned to a country where he will risk persecution on the grounds set out in article 1 A of the Convention on the Status of Refugees (28 July 1951), or where the alien will not be protected against being sent on to such country. This does not apply if the alien must reasonably be deemed a danger to national security or if, after final judgment in respect of a particularly dangerous crime, the alien must be deemed a danger to society, but cf. subsection (1).”

CCPR/C/82/D/1222/2003 Page 6 the Aliens Act, allowing for a further risk assessment⁷ by the Danish Immigration Service prior to his return to Uganda. On 1 December 20003, the High Court of Eastern Denmark dismissed the   author’s   appeal   against   the   City   Court’s   decision.   On   19   January   2004,   the   Danish Immigration  Service,  based  on  information  from  the  Foreign  Ministry  about  an  amnesty  for supporters of former President Amin and the risk of double jeopardy in Uganda, determined that Section 31 of the Aliens Act would not preclude the author’s expulsion. The author’s appeal to the  Danish  Refugee  Board  and  his  application  to  the  Board  of  Appeal  for  leave  to  appeal  the High  Court’s  decision  of  1  December  2003,  were  still  pending  when  the  State  party  made  its submission.   It   is   thus   submitted   that   the   communication   is   inadmissible   under   article   5, paragraph 2 (b), of the Optional Protocol. 4.4 On  the  merits,  the  State  party  submits  that  the  procedure  before  the  Danish  courts  and immigration authorities ensures that a person will not be expelled to a country where he or she would face a real risk of being subjected to torture or to cruel, inhuman or degrading treatment or punishment. The Danish  Immigration Service, both in its opinions dated 19 April 2002 and 18 September  2003,  and  in  its  risk  assessment  under  Section  31  of  the  Aliens  Act,  carefully examined  the  author’s  risk  of  being  subjected  to  ill-treatment.  It  concluded  that  his  expulsion would  not  contravene  Sections  26  or  31  of  the  Aliens  Act.  The  latter  reflects  Denmark’s obligations under article 3 of the European Convention on Human Rights and hence article 7 of the  Covenant.  The  State  party  concludes  that  the  author’s  expulsion  would  be  compatible  with article 7 of the Covenant. 4.5 While conceding that the author’s expulsion constitutes an interference with his right to family life under article 17, the State party argues that this interference is provided for by law, is in  accordance  with  the  provisions,  aims  and  objectives  of  the  Covenant,  and  reasonable  in  the circumstances  of  the  case,  given  that  it  was  based  on  the  author’s  conviction  for  a  particularly serious  offense.  The  State  party  invokes  its  right  to  control  the  entry  and  residence  of  aliens, which included a right to expel persons convicted of criminal offenses, insofar as such expulsion was  not  arbitrary  but  proportionate  to  the  legitimate  aim  pursued.  For  the  State  party,  the author’s   expulsion   would   not   constitute   an   unreasonable   hardship   for   his   wife   and   oldest daughter,  who  both  only  had  minor  ties  with  Denmark  and  could  therefore  reasonably  be expected to accompany the author. Conversely, if they prefer to stay in Denmark, their right of residence would not be affected by the author’s expulsion, as they were both issued permanent residence permits. 4.6 The State party argues that, while constituting an interference with article 23, paragraph 1,  of  the  Covenant,  the  author’s  expulsion  would  not  violate  that  provision,  since  nothing prevented his wife, a Tanzanian national, their children, or his oldest daughter from continuing their family life with the author in Tanzania or elsewhere outside Denmark. 7 See section 49a of the Aliens Act: “Section 49a. Prior to the return of an alien who has been issued a residence permit under sections 7 or 8 and who has been expelled by judgment […], the Danish Immigration Service decides whether the alien can be returned, cf. section 31, unless the alien consents to his return. […].”

CCPR/C/82/D/1222/2003 Page 7 5. On  17  March  2004,  the  State  party  informed  the  Committee  that,  by  decision  of  17 February  2004,  the  Board  of  Appeal  dismissed  the  author’s  application  for  leave  to   appeal against the High Court’s decision of 1 December 2003. Author’s request for interim measures 6.1 On  7  and  9  July  2004,  the  author  requested  the  Committee  to  seek  the  State  party’s assurance that he will not be expelled to Uganda while his communication is under consideration by the Committee, where he would risk suffering irreparable harm, due to his former position as lieutenant during the rule of Idi Amin. 6.2 The  author  submits  that,  by  decision  of  28  June  2004,  the  Danish  Refugee  Board dismissed  his  appeal  against  the  decision  of  the  Danish  Immigration  Service  dated  19  January 2004,  on  the  ground  that  he  would  risk  no  harm  upon  return  to  Uganda.  On  6  July  2004,  the police  formally  notified  him  of  this  decision,  and  informing  him  that  he  would  be  deported without delay. 6.3 The  author  argues  that  he  was  an  outspoken  critic  of  the  present  Ugandan  government during his time in Denmark and that he participated in conferences, where he protested against Uganda’s  treatment  of  political  opponents.  He  identifies  several  current  Ugandan  military  and government officials whom he fears particularly. 6.4 In   support   of   his   claim,   the   author   refers   to   reports   from   non-governmental   and governmental sources, which confirm the continued occurrence of extrajudicial killings, torture and  arbitrary  detention  of  political  opponents  or  suspected  rebel  supporters  in  Uganda.  By reference   to   the   Committee’s   jurisprudence,   he   argues   that   his   immediate   expulsion   from Denmark would render examination of his communication by the Committee moot. State party’s additional submission and author’s comments 7. On  15  July  2004,  the  State  party  conceded  that  the  author  has  exhausted  domestic remedies,  after  his  appeal  against  the  decision  of  19  January  2004  of  the  Danish  Immigration Service was dismissed by the Immigration Board on 28 June 2004. A subsequent request to the Minister   for   Refugees,   Immigration   and   Integration   to   grant   him   a   residence   permit   on humanitarian grounds, pursuant to Section 9b (1) of the Aliens Act, was rejected on 9 July 2004, as such a permit could, at the earliest, be granted two years after an applicant’s departure from Danish territory. 8. On 21 July 2004, the  author observed that the State party  had not  addressed the risk of irreparable harm that he would face upon return to Uganda. In support of his claims, he submits a letter  dated  14  July  2004  from  the  former  chairman  of  the  Schiller  Institute  in  Denmark,  who confirms that the author participated in conferences of the Institute in his capacity as chairman of the Ugandan Union in Denmark. His participation in a September 1997 conference, during which Ugandan  President  Museveni’s  alleged  links  with  the  Rwandan  Patriotic  Front  were  criticized, was  documented  in  an  article  published  in  the  Executive  Intelligence  Review  on  10  October 1997, as well as in a German-language newspaper. The letter expresses concern that the Ugandan

CCPR/C/82/D/1222/2003 Page 8 Embassy in Copenhagen may have registered Ugandan citizens who participated in the Schiller Institute’s conferences. Author’s comments on the State party’s observations on admissibility and merits 9.1 On 26 August 2004, the author commented on the State party’s admissibility and merits submissions  of  11  February  and  15  July  2004,  reiterating  that  he  has  exhausted  domestic remedies.  He  submits  that  the  letter  from  the  Schiller  Institute  clearly  shows  that  the  Ugandan authorities  are  aware  of  his  political  activities,  on  the  basis  of  the  lists  of  participants  of  the conferences he attended, which are also available online. While claiming that the danger he faces upon return to Uganda is real and a necessary  and foreseeable  consequence of deportation, the author criticizes that the State party failed to address the evidence he had submitted. 9.2 By merely relying on the risk assessments conducted by the Danish Immigration Service on 19 April 2002 and 18 September 2003, under Sections 50 and 26 of the Aliens Act, the State party  ignored  the  fact  that  a  substantial  part  of  the  author’s  article  7  complaint  was  based  on information obtained after the risk assessments. In the absence of a response from the State party to   his   specific   submissions,   considerable   weight   should   be   given   to   these   uncontested submissions,   given   that   the   State   party   had   the   opportunity   to   investigate   his   allegations thoroughly. It had not shown that the circumstances in Uganda had changed fundamentally, so as to render the reasons for granting him asylum, in 1986, obsolete. 9.3 In support of his claims under articles 17 and 23, the author reiterates that he and his wife have  two  children  who  were  both  born  and  raised  in  Denmark,  speak  Danish  and  consider Denmark  as  their  home.  The  State  party’s  failure  to  address  this  aspect  could  not  change  the importance  which  the  Committee  should  accord  to  their  upbringing  in  a  stable  and  reliable environment,  especially  if  articles  17  and  23  of  the  Covenant  are  interpreted  in  the  light  of articles 9 and 16 of the Convention on the Rights of the Child. His important role in the lives of the  two  children  is  reflected  in  several  reports  on  family  visits  during  prison  leave;  the  reports record the happiness of the children to see their father. 9.4 On  6  August  2004,  the  Copenhagen  City  Court  decided  to  release  the  author,  thereby implicitly  acknowledging  his  close  family  ties,  as  well  as  the  hardship  that  the  11  months  in custody on remand pending deportation after the end of his prison sentence constituted for him and his family. He argues that enabling him to resume his family life for a few months, during which  he  may  look  after  his  children  while  his  wife  works,  only  to  eventually  deport  him  to Uganda, would amount to a severe infringement of his rights under articles 17 and 23. 9.5 Regarding the State party’s argument that nothing prevents his family from continuing to live together outside Denmark, the author submits that his wife would not be able to follow him to   a   country   without   any   job   opportunities   or   any   prospects   for   schooling   and   day-care institutions for her children. 9.6 The author adds that the possibility of his resettling in Tanzania, as proposed by the State party, is not a realistic option, since that country is under no obligation to receive him, and most

CCPR/C/82/D/1222/2003 Page 9 likely reluctant to accept a non-national who had been convicted of a criminal offense. Despite occasional visits to Tanzania, he has no ties to that country. 9.7 The  author  reiterates  that  he  has  no  contact  with  any  family  members  in  Uganda.  His tribe  members,  the  Toros,  were  likely  to  treat  him  as  an  outcast  or  to  kill  him,  because  of  his service in the army of Idi Amin, who had oppressed the Toros. 9.8 The  author  recalls  that  the  May  2002  judgment  of  the  Copenhagen  City  Court  was  not unanimous  with  regard  to  his  expulsion,  as  one  of  the  three  judges  considered  his  expulsion incompatible with article 8 of the European Convention on Human Rights.  In  a case similar to this, involving the deportation of a foreign national who had lived in Denmark for a number of years together with his wife, and who also had been ordered deported on the basis of a conviction for drug related offenses, the European Court of Human Rights had found a violation of article 8 of the Convention.⁸ 9.9 The author argues that, in the light of the length of his stay in Denmark and his family’s interest to continue living together, the State party’s decision to deport him must be considered disproportionate  to  the  aim  pursued,  despite  the  relatively  serious  nature  of  his  conviction.  By reference to the Committee’s jurisprudence⁹, he concludes that the expulsion order against him constitutes arbitrary interference with his rights under article 17 and 23. Issues and proceedings before the Committee Consideration of admissibility 10.1 Before   considering   any   claim   contained   in   a   communication,   the   Human   Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant. 10.2 The Committee has ascertained, in accordance  with article 5, paragraphs  (a) and (b), of the  Optional  Protocol,  that  the  same  matter  is  not  being  examined  under  another  international procedure of investigation or settlement, and that the author has exhausted domestic remedies, as conceded by the State party. 10.3 The Committee considers that the  author has sufficiently  substantiated his claims under articles   7,   17   and   23,   paragraph   1,   for   purposes   of   admissibility.   It   concludes   that   the communication is admissible and proceeds to an examination on the merits. 8 European Court of Human Rights, Application No. 56811/00 (Amrollahi v. Denmark), Judgment of 11 July 2002. 9 See Communication No. 1069/2002, Bakhkiyari v. Australia, Views adopted on 29 October 2003, at para. 9.6.

CCPR/C/82/D/1222/2003 Page 10 Consideration of the merits 11.1 The Human Rights Committee has considered the present communication in light of all the information made available to it by the parties, as provided in article 5, paragraph 1, of the Optional Protocol. 11.2 The first issue before the Committee is whether the author’s expulsion to Uganda would expose  him  to  a  real  and  foreseeable  risk  of  being  subjected  to  treatment  contrary  to  article  7. The  Committee  recalls  that,  under  article  7  of  the  Covenant,  States  parties  must  not  expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.¹⁰ It takes note of the author’s detailed account as to why he fears to be subjected to ill-treatment at the hands of the Ugandan authorities, and concludes that he has made out a prima facie case of such a risk. 11.3 The Committee observes that the State party, while challenging the author’s claim under article 7, does not submit any substantive grounds for its position. Instead, it merely refers to the risk  assessments  of  the  Danish  Immigration  Service  under  articles  26  (opinions  dated  19  April 2002 and 18 September 2003) and 31 (decision of 19 January 2004, as affirmed by the Danish Refugee Board on 28 June 2004) of the Aliens Act. After an examination of the documents, the Committee notes, firstly, that the Immigration Service’s scrutiny under article 26 (1) (vii) of the Aliens Act was limited to an assessment of the author’s personal circumstances in Denmark, as well  as  his  risk  of  being  subjected  to  punishment  for  the  same  offense  for  which  he  had  been convicted  in  Denmark,  without  addressing  the  broader  issues  under  article  7  of  the  Covenant, such as ill-treatment which may  give rise to an  asylum claim under  article 7 (1) and  (2) of the Aliens Act. Secondly, in its decision of 19 January 2004, the Immigration Service merely relies on  an  assessment  made  by  the  Ministry  for  Foreign  Affairs  concerning  the  risk  of  double jeopardy in Uganda and an amnesty for supporters of former President Amin to conclude that the author would not face a risk of being tortured or ill-treated upon return to Uganda. Similarly, the Refugee Board, after giving a detailed account of the author’s statements as to his fear of being subjected to ill-treatment upon return to Uganda, dismissed his appeal on the basis of the same opinion by the Ministry, without providing any substantive reasons of its own, in its decision of 28 June 2004. In particular, the Board merely dismissed, because of late submission, the author’s claim  that  his  political  activities  in  Denmark  were  known  to  the  Ugandan  authorities,  thereby placing  him  at  a  particular  risk  of  being  subjected  to  ill-treatment  upon  return  to  Uganda.  The State party has not furnished the Committee with the opinion of its Ministry for Foreign Affairs or with other documents that would make out the factual basis for the Ministry’s assessment. In sum, before the Committee the State party seeks to refute the alleged risk of treatment contrary to  article  7  merely  by  referring  to  the  outcome  of  the  assessment  made  by  its  own  authorities, instead  of  commenting  the  author’s  fairly  detailed  account  on  why  such  a  risk  in  his  opinion exists. 11.4 In the light of the State party’s failure to provide substantive arguments upon which the State party relies to rebut the author’s allegations, the Committee finds that due weight must be given  to  his  detailed  account  of  the  existence  of  a  risk  of  treatment  contrary  to  article  7. 10 General Comment 20 [44], at para. 9.

CCPR/C/82/D/1222/2003 Page 11 Consequently, the Committee is of the view that the expulsion order against the author would, if implemented by returning him to Uganda, constitute a violation of article 7 of the Covenant. 11.5 As  to  the  alleged  violation  of  the  author’s  right  to  family  life  under  articles  17  and  23, paragraph 1, the Committee reiterates its jurisprudence that there may be cases in which a State party's  refusal  to  allow  one  member  of  a  family  to  remain  in  its  territory  would  involve interference in that person's family life. However, the mere fact that one member of the family is entitled to remain in the territory of a State party does not necessarily mean that requiring other members of the family to leave involves such interference.¹¹ 11.6 In the present case, and as the State party has conceded that the author’s removal would constitute  an  interference  with  his  family  life,  the  Committee  considers  that  a  decision  by  the State party to deport the father of a family with two minor children and to compel the family to choose  whether  they  should  accompany  him  or  stay  in  the  State  party  is  to  be  considered "interference"  with  the  family.  Although  the  author’s  life  with  his  family  was  interrupted  for  a considerable  period  of  time  because  of  his  incarceration  and  subsequent  custody  on  remand pending deportation, he received regular visits from his wife during that period and was able to visit  his  children  several  times  during  prison  leave.  Moreover,  he  resumed  his  family  life  after the Copenhagen City Court’s decision to release him on 6 August 2004. 11.7 The issue therefore arises whether or not such interference would be arbitrary or unlawful and thus contrary to article 17, read in conjunction with article 23, paragraph 1, of the Covenant. The Committee observes that the author’s expulsion was based on Section 22 of the Aliens Act. However, it recalls that even interference provided for by law should be in accordance with the provisions,  aims  and  objectives  of  the  Covenant  and  should  be  reasonable  in  the  particular circumstances.¹² In this regard, the Committee reiterates that in cases where one part of a family must leave the territory  of the State party while  the other part would be  entitled to remain, the relevant  criteria  for  assessing  whether  or  not  the  specific  interference  with  family  life  can  be objectively justified must be considered, on the one hand, in light of the significance of the State party's reasons for the removal of the person concerned and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal.¹³ 11.8 The Committee notes that the State party justifies the author’s removal (a) by the fact that he was convicted of drug-related offenses, and (b) on the assumption that the serious nature of these offenses is reflected by the length of the prison sentence imposed on him. It also takes note of  the  author’s  argument  that  his  wife  and  children  live  in  Denmark  under  stable  and  reliable conditions and would, therefore, not be able to follow him, if he were to be expelled to Uganda. While it may well be that the author’s expulsion would constitute a considerable hardship for his wife and children, whether they remain in Denmark, or whether they decide to avoid separation 11 Communication No. 930/2000, Winata v. Australia, Views adopted on 26 July 2001, at para. 7.1; Communication No. 1011/2001, Madafferi v. Australia, Views adopted on 26 July 2004, at para. 9.7. 12 General Comment 16 [32], at para. 4. 13 See Communication No. 1011/2001, Madafferi v. Australia, Views adopted on 26 July 2004, at para. 9.8.

CCPR/C/82/D/1222/2003 Page 12 of  the  family  by  following  the  author  to  a  country  they  do  not  know  and  whose  language  the children  do  not  speak,  the  Committee  notes  that  the  author  has  submitted  the  communication solely in his own right and not on behalf of his wife or children.  It follows that the Committee can  only  consider  whether  the  author’s  rights  under  articles  17  and  23  would  be  violated  as  a result of his removal. 11.9 In  the  present  case,  the  Committee  notes  that  the  State  party  has  sought  to  justify  its interference with the author’s family life by reference to the nature and severity of the author’s offenses. The Committee considers that these reasons advanced by the State party are reasonable and sufficient to justify the interference with the author’s family life. The Committee therefore concludes  that  the  author’s  expulsion,  if  implemented  by  returning  him  to  Uganda,  would  not amount to a violation of his rights under articles 17 and 23, paragraph 1. 12. The  Human  Rights  Committee,  acting  under  article  5,  paragraph  4,  of  the  Optional Protocol  to  the  International  Covenant  on  Civil  and  Political  Rights,  is  of  the  view  that  the author’s  expulsion  to  Uganda  would,  if  implemented,  violate  his  rights  under  article  7  of  the Covenant. 13. In accordance with article 2, paragraph 3 (a), of the Covenant, the State party is under an obligation  to  provide  the  author  with  an  effective  remedy,  including  revocation  and  full  re- examination  of  the  expulsion  order  against  him.  The  State  party  is  also  under  an  obligation  to prevent similar violations in the future. 14. Bearing in mind that, by becoming a State party to the Optional Protocol, the State party has recognized the competence of the Committee to determine whether there has been a violation of  the  Covenant  or  not  and  that,  pursuant  to  article  2  of  the  Covenant,  the  State  party  has undertaken to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized  in  the  Covenant,  the  Committee  wishes  to  receive  from  the  State  party,  within  90 days,  information  about  the  measures  taken  to  give  effect  to  its  Views.  The  State  party  is  also requested to publish the Committee's Views. [Adopted   in   English,   French   and   Spanish,   the   English   text   being   the   original   version.   Subsequently  to  be  issued  also  in  Arabic,  Chinese  and  Russian  as  part  of  the  Committee’s annual report to the General Assembly.]

CCPR/C/82/D/1222/2003 Page 13 Individual opinion of Committee members Ms. Ruth Wedgwood and Mr. Maxwell Yalden (dissenting) The  majority  concludes  that  Denmark  has  failed  adequately  to  support  its  decision  to deport the author, a Ugandan citizen, following his conviction for drug-related criminal offences and  a  prison  sentence  of  2  years,  six  months.  The  majority  finds  that  the  author,  who  was  a former  member of Idi Amin's armed forces, has shown a "prima facie" case that he would risk torture or other mistreatment in Uganda upon his return, and that the State party has not rebutted it. States   parties   have   a   duty   to   observe   the   international   legal   requirements   of   non- refoulement.  The  general  circumstances  in  Uganda  are  not  reassuring.  In  the  Human  Rights Committee's  recent  review  of  Uganda's  country  report  under  the  Covenant,  for  example,  the Committee  noted  a  "widespread  practice  of  torture  and  ill-treatment"  of  persons  in  detention. (Concluding Observations on Uganda, May 5, 2004, at para. 17.) The State party would therefore wish to give careful consideration to the dangers claimed by the author. Nevertheless,  the  Committee  cannot  sit  in  review  of  the  facts  and  evidence  de  novo  in each  deportation  case,  especially  where  a  case  turns  upon  an  evaluation  of  a  complainant's credibility. The Committee has therefore been obliged to examine the documents available to it. The State party’s response in this case describes the lengthy review of the author's status by the national authorities. This has included information obtained from the Foreign Ministry, and three reviews by the Danish Immigration Service, as well as decisions of the Copenhagen City Court, the High Court of Eastern Denmark, and the Danish Board of Appeal. The 28 June 2004 decision of  the  Danish  Refugee  Board  was  also  submitted  to  the  Committee  by  the  author's  counsel, though counsel chose not to provide a translation, leaving it available only to those few members of the Committee who might be able to read Danish. The  State  party  has  assured  the  Committee  that  it  is  "at  the  disposal  of  the  Secretary- General  of  the  United  Nations  should  this  pleading  or  the  case  in  general  give  rise  to  any questions." (State party’s observations of 11 February 2004 on admissibility and merits, at p. 1.) The Committee is able to pose written requests to States parties, as well as to complainants.  If the  Committee  had  wished  to  have  the  author’s  full  immigration  file  or  any  other  documents within it, it could easily have asked the State party. Denmark has been wholly cooperative with the Committee while this complaint was pending, holding in abeyance the author's deportation at the  Committee's  request,  and  releasing  him  on  parole to  his  family.  The  Committee  has  not ordinarily asked to see a foreign ministry’s telex traffic, when presented with reasoned opinions, and  it  is  doubtful  that  many  States  would  agree  to  provide  confidential  material  of  this  nature. But  the  Committee  is  certainly  able  to  ask  for  the  documents  that  it  finds  necessary  for  an evaluation, instead of deciding a case irrevocably on an incomplete record. At  a  minimum,  the  Committee  should  have  given  the  State  party  an  opportunity  to provide any additional documents it wished to inspect. And we believe that this requirement has not been met. It is true that, in the absence of any cooperation and provision of information by a State  party,  the  Committee  may,  as  appropriate,  decide  to  give  “due  weight”  to  an  author’s allegations,  and  may  proceed  to  find  a  violation  on  that  basis.  However,  this  conclusion  is  not

CCPR/C/82/D/1222/2003 Page 14 warranted in the present case, where the State party, as noted above, made an effort to cooperate with the Committee, and could readily have been asked to provide further relevant information. The  Committee  has  a  clear  duty  to  respect  a  standard  of  fairness  that  entails  not  only being  fair  to  both  parties  but  being  seen  to  be  fair,  and  we  believe  that  standard  has  not  been respected. We therefore  cannot agree that the conclusion of a violation of the Covenant can be sustained in the present case. [Signed] Ruth Wedgwood [Signed] Maxwell Yalden [Done in English, French and Spanish, the English text being the original version. Subsequently to  be  issued  in  Arabic,  Chinese  and  Russian  as  part  of  the  Committee’s  annual  report  to  the General Assembly.]