REU, Alm.del - 2015-16 - Endeligt svar på spørgsmål 436: Spm. om ministeren har igangsat en undersøgelse af begivenhederne i Ellebækfængslet i 2013 omhandlende afhentningen af den tyrkiske statsborger Ferhat Kömürs, til justitsministeren

Retsudvalget 2015-16
REU Alm.del
Offentligt

Copenhagen, 4 April 2016

CAT Communication No. 580/2014

F.K. v. Denmark

Follow-up observations of the Government of Denmark

Introduction

By letter of 22 December 2015, the Committee against Torture (hereinafter ‘the Committee’)

transmitted its decision adopted on 23 November 2015 in the above case to the Government

of Denmark (hereinafter ‘the Government’).

In para. 9 of the Committee’s decision, the Government was invited to inform the Committee,

within 90 days, of the steps taken in response to the Committee’s observations.

The Government’s follow-up observations

2.1 Article 3 of CAT

The Government observes that it follows from para. 7.6 of the Committee’s decision that the

Committee considers that,

by rejecting the complainant’s asylum application without

ordering a medical examination, the State party failed to sufficiently investigate whether

there are substantial grounds for believing that the complainant would be in danger of

being subjected to torture if returned to Turkey.

As such, the Committee considers that,

these circumstances, the deportation of the complainant to Turkey would constitute a

violation of Article 3

of the Convention against Torture and other Cruel, Inhuman or

Degrading Treatment or Punishment (hereinafter ‘CAT’).

The Government would like to inform the Committee that on 9 January 2015 the complainant

requested the Refugee Appeals Board (Flygtningenævnet) to reopen his asylum case, referring

to the medical examination made by Amnesty International on 25 September 2014 (Annex 3).

It should be noted that the medical examination was referred to as an examination for signs of

torture in the decision made by the Refugee Appeals Board on 18 September 2015.

On 18 September 2015, the Refugee Appeals Board refused to reopen the complainant’s

asylum case. The following appears,

inter alia,

from the decision of the Refugee Appeals

Board:

‘The Refugee Appeals Board observes that the Board will not initiate an examination

for signs of torture in cases in which the Board has been unable to consider as facts the

REU, Alm.del - 2015-16 - Endeligt svar på spørgsmål 436: Spm. om ministeren har igangsat en undersøgelse af begivenhederne i Ellebækfængslet i 2013 omhandlende afhentningen af den tyrkiske statsborger Ferhat Kömürs, til justitsministeren

applicant’s grounds for asylum. Likewise, the Board will normally not initiate an

examination if the Board considers it a fact or a possibility that the applicant has

previously been subjected to torture, but finds, upon a specific assessment of the

applicant’s situation, that the applicant will not be at a real risk of torture if returned

today.

The Refugee Appeals Board finds that no new factual information of such significance

to the case has been provided in the request for reopening as to justify a certain

probability that the decision rendered would have been different, had the information

been available when the Board made its original decision on the application.

As regards the report made on the examination of [the complainant] for signs of torture

conducted by the Amnesty International Danish Medical Group, the Refugee Appeals

Board observes that it appears from the conclusion of the report,

inter alia,

that:

“[The complainant] stated that he suffered from headache and dizziness as well as pain

in his back/neck and his left forearm. Symptoms that can be compatible with the blows

that he had received and his untreated broken left arm. [The complainant] reported

sensory disturbances under his feet and in his lower legs and pain under his feet. This is

fully compatible with the possible consequences of beating on the soles of the feet

(falanga). As regards his mental state, [the complainant] stated that he suffers from

insomnia, nightmares, concentration difficulties, depression, flashbacks of the trauma,

excitability, general anxiety and nervousness. The Harvard Trauma Questionnaire was

completed, and [the complainant] scored 2.75 (scores above 2.5 are consistent with

post-traumatic stress disorder, also referred to as PTSD). At the physical examination,

[the complainant] was found to have reduced tactile sensitivity and pain on the

application of pressure to both soles of his feet. This is a consequence compatible with

beating on the soles of the feet (falanga). Mentally, [the complainant] was found to be

alert and oriented, and there was good contact. He was assessed not to be psychotic.

Symptoms of depression and tearfulness were detected. [The complainant] appeared

nervous and tense during the physical examination, which is compatible with a

consequence of the alleged torture. Accordingly, the torture described is consistent with

the symptoms and objective findings detected in the examination today.”

The Refugee Appeals Board finds that the examination for signs of torture performed by

the Amnesty International Danish Medical Group cannot lead to a different assessment

of the credibility of [the complainant’s] statements concerning his activities for the

PKK.

The Refugee Appeals Board observes that the majority of the members of the Board

found that they could not dismiss [the complainant’s] statement that he had been a

member of several lawful Kurdish parties from 2006 to 2010 and that he had been

detained several times during that period after having participated in demonstrations and

celebrations of Kurdish festivals.

However, the majority of the members of the Refugee Appeals Board found that [the

complainant] had failed to render probable his grounds for asylum relating to his

membership of the PKK and his participation in combat training. Accordingly, the

majority of the Board members found that [the complainant] had also failed to render it

probable that he would be at an actual risk of being subjected to torture if returned to

Turkey.

The Refugee Appeals Board observes that, in the Board’s decision of 30 August 2013,

the majority of the Board members emphasised that [the complainant] had provided

inconsistent information as to when he became a member of the PKK, that the Board

found that [the complainant’s] statement on his reaction to being caught in crossfire in

the mountains together with a group of militant PKK members seemed non-credible

considering his statement on his reasons for joining the PKK, and that [the

complainant’s] statement to the Board that, in 2009 when he was a wanted person, he

had been detained by the authorities several times for other reasons without the

authorities realising that he was wanted appeared elaborative and inconsistent with his

previous statements during the asylum proceedings. Reference is also made to the

account of the assessment of evidence performed by the Board given on pages 28f of

the Government’s observations of 2 July 2014 to the UN Committee against Torture.

The majority of the members of the Refugee Appeals Board have considered whether

those circumstances could have been caused by the torture which [the complainant] has

claimed to have suffered, but the majority find that this is not the case, and the Board

finds that the report on the examination for signs of torture produced does not give rise

to a different assessment of this matter.

Based on an overall assessment of the information available in the case file, including

the report made by the Amnesty International Danish Medical Group, the Refugee

Appeals Board still finds that [the complainant] has failed to render probable the

grounds for asylum relied upon by him, and the Board also finds that he will not be at a

real and actual risk of torture if returned today.’

The Government had not yet forwarded the Refugee Appeals Board’s decision of 15

September 2015 to the Committee before the Committee adopted its decision on the

communication on 23 November 2015. The decision is appended in its entirety as Exhibit 1.

In consequence of the decision adopted by the Committee on 23 November 2015, the Refugee

Appeals Board reopened the complainant’s asylum case for review at an oral hearing before a

new panel on 14 March 2016. It is observed that an oral hearing before a new panel means

that the matter is reconsidered by five Board members, including a judge, in a contradictory

procedure in which the applicant is represented by counsel.

The following appears from the Refugee Appeals Board’s decision of 17 March 2016:

‘The applicant is an ethnic Kurd of the Muslim faith from the Konya province of

Turkey. The applicant has stated that he has been a member of the DTP, the BDP, the

KCK and the PKK from 2006 to 2010.

As his grounds for seeking asylum, the applicant has stated that, in case of his return to

Turkey, he feared being given a long prison sentence because he had been a member of

the Kurdistan Workers’ Party (the PKK) and the Kurdish Communities Union (the

KCK). The applicant also feared that, as a conscientious objector, he would be given a

long prison sentence and would be ordered to perform his compulsory military service,

in which connection he would be killed by the authorities because he was an ethnic

Kurd. The applicant finally feared that persons from the PKK would kill him because he

had fled during a training stay with the PKK in the summer of 2010.

In support of this, the applicant has stated that he had been a member of the DTP and

the BDP from 2006 until his departure, and that the authorities had consequently

subjected him to repeated physical and mental abuse from 2006 to 2008. The applicant

had furthermore been a member of the PKK. In the summer of 2010, the applicant had

gone with other PKK members to a place in the mountains where a confrontation had

taken place between government forces and the guerrilla unit of the PKK. The applicant

had fled from the confrontation and had subsequently hidden in Alanya for some weeks

until the applicant’s grandfather had organised the applicant’s departure.

The Refugee Appeals Board finds that the applicant has failed to render probable his

grounds for asylum.

Accordingly, the applicant’s statements that he was a member of the DTP and the BDP

from 2006 until his departure and that the authorities consequently subjected him to

repeated physical and mental abuse from 2006 to 2008 cannot be considered as facts. In

this respect, it has been emphasised that the applicant has failed to offer, with the degree

of certainty and accuracy that should be expected, an account of when and how he was

active within the parties and of the circumstances related to his detentions and the abuse

against him.

The applicant’s statements that he joined the PKK and that he escaped in the summer of

2010 after an armed confrontation between government forces and the guerrilla unit of

the PKK on the way to a training camp in the mountains cannot be considered as facts

either. The Board has emphasised in this respect that, in the asylum proceedings, the

applicant has given inconsistent statements as to how he joined the PKK. Moreover, the

applicant’s statement that he wanted weapons training is found to be non-credible based

on the fact that he stated at the interview conducted by the Danish Immigration Service

on 21 March 2013 that he had not at any time contemplated participating in armed

combat of any kind. His statement that he started wondering after the confrontation

whether he was prepared to fight other Kurds, who constituted some of the government

forces, is also found to be non-credible. Accordingly, he stated at the interview

conducted by the Danish Immigration Service on 21 March 2013 that he knew already

before deciding to receive weapons training that ethnic Kurds serve in the Turkish army.

The applicant’s statement to the Refugee Appeals Board on 30 August 2013 that, during

a period when he was allegedly wanted, he was detained by the authorities several times

in 2009 for other reasons without the authorities realising that he was wanted is also an

elaboration which does not accord with his previous statements in the proceedings.

Moreover, the applicant’s statement that the Turkish authorities did not realise during

his alleged detentions that he was wanted seems non-credible based on the background

information available on the nature and the intensity of the efforts of the Turkish police

and intelligence service to arrest Kurdish opponents of the Turkish regime and charge

them under the Turkish anti-terrorism legislation. Reference is made,

inter alia,

Tyrkia: Situasjonen for politisk aktive kurdere

(Turkey: The situation for politically

active Kurds), published by the Norwegian Country of Origin Information Centre

(Landinfo) on 21 August 2015.

The Refugee Appeals Board observes in respect of the medical examination of the

applicant conducted by the Amnesty International Danish Medical Group that, on

several points, the findings mentioned in the report of 25 September 2014 do not accord

with the information on physical abuse against the applicant stated by him in the asylum

proceedings. Accordingly, he stated as follows in his asylum application form of 20

December 2012 to clarify how he had been subjected to torture or other physical abuse:

“As a result of torture, my left arm is broken; in the middle of my eyebrow, in the

middle of my forehead, under my chin and on my head there are still permanent

signs of manipulation.

[...]

There is a fracture and a twist of the left arm in two places as a consequence of

torture.”

The torture described by the applicant is seen to be inconsistent with the information

given in the report of 25 September 2014, including as concerns “Arms and legs”, in

respect of which the report simply stated “Normal strength, sensitivity and motility.

Nothing abnormal detected.” By contrast, the report further mentions multiple times

beating on the soles of the feet (falanga), which form of torture, however, the applicant

is not seen to have mentioned in his asylum application form, at the interviews

conducted by the Danish Immigration Service or at the hearing before the Refugee

Appeals Board on 30 August 2013.

The Refugee Appeals Board further contends that the applicant’s grounds for asylum,

except for his fear of punishment for evasion of compulsory military service, relate to

the applicant’s termination of his membership of the PKK and the KCK and his escape

from the training camp in the summer of 2010 and that, in any circumstance, the

conclusion on the medical examination is not seen to be directly linked to the

assessment of the credibility of the applicant’s statements on the events included in this

part of his grounds for asylum, which chronologically emerged after the time when the

torture allegedly took place. Moreover, the Board finds no basis for considering the

applicant’s statements on and recollection of the events included in this part of his

grounds for asylum to have been affected in a crucial way by any physical abuse to

which he has allegedly been subjected.

The Board further finds that the conclusion on the Amnesty International report does

not independently add to the credibility of the applicant’s grounds for asylum, including

that he has allegedly been subjected to the torture described by him in the circumstances

described by him.

In its assessment of credibility, the Refugee Appeals Board has further emphasised that

the applicant, who entered Denmark illegally in November 2010 according to the

information available and who stayed in Denmark illegally for the following two years,

found no reason to apply for asylum until he was arrested by the police on 4 February

2012 for possession of controlled substances and for surrendering incorrect information

about his identity to the police, for which offences he was given a suspended prison

sentence of 40 days, cf. section 27(1), cf. section 2, cf. Schedule 1, List A, No. 1, of the

Act on Controlled Substances (lov

om euforiserende stoffer)

and section 164(1), cf.

section 174, of the Criminal Code (straffeloven), and was expelled from Denmark and

banned from re-entry for six years.

According to the information available, the circumstance that the applicant has not

performed compulsory military service will not entail any disproportionate sanction,

and it is found that it cannot justify a residence permit.

Based on the above, the Refugee Appeals Board finds that the conditions for residence

under section 7(1) or 7(2) of the Aliens Act are not satisfied.

Against that background, the Refugee Appeals Board does not allow the applicant’s

alternative claim for adjournment of the case pending an examination for signs of

torture or his more alternative claim for remission of the case to the Danish Immigration

Service for re-examination.

It is observed in this respect that, in cases in which the applicant has claimed to have

been subjected to torture as a result of circumstances that still apply and in which there

is therefore a risk that the applicant will be subjected to torture again in case of return,

the Refugee Appeals Board will normally not make arrangements for an examination

for signs of torture if the relevant applicant has appeared non-credible throughout the

proceedings as in the case at hand, and the Board therefore fully rejects the relevant

applicant’s statement on the alleged torture or the circumstances that gave rise to the

torture. If the statement on why the applicant was subjected to torture is rejected as

being non-credible and the conditions giving rise to the risk of torture in case of his

return continue to prevail according to the applicant, it can naturally not be considered a

fact either that, on that basis, the applicant risks being subjected to torture in case of

return to his country of origin.

Against that background, the Refugee Appeals Board maintains that returning the

applicant to Turkey will not be contrary to Article 3 of the Convention against Torture,

and the Board still finds that the applicant does not satisfy the conditions for residence

under section 7 of the Aliens Act.’

The full wording of the Refugee Appeals Board’s decision of 17 March 2016 is appended as

Exhibit 2. It is observed that the exhibits of the decision are not appended, as Exhibit I has

previously been submitted to the Committee, and Exhibit II to the decision is appended to

these follow-up observations as Exhibit 1.

It appears from the above decision of the Refugee Appeals Board that, in light of the

Committee’s decision, the Board has allowed the complainant a full reconsideration of his

asylum case, taking into account Denmark’s obligations under CAT and the Committee’s

present decision.

As appears from the decision of the Refugee Appeals Board of 17 March 2016, the Refugee

Appeals Board found that the complainant has failed to render probable his grounds for

asylum.

As regards the report on the medical examination made by Amnesty International on 25

September 2014, which has been produced by the complainant, the Refugee Appeals Board

observed,

inter alia,

that, on several points, the findings mentioned in the report were found

not to accord with the applicant’s own statement on the abuse against him and that the

conclusion of the medical examination was seen, in any circumstances, not to be directly

linked to the assessment of the credibility of the applicant’s statements on his grounds for

asylum, which chronologically emerged after the time when the torture allegedly took place.

Moreover, the Refugee Appeals Board found no basis for considering the complainant’s

statements on and recollection of the events included in his grounds for asylum to have been

affected in a crucial way by any physical abuse to which he had allegedly been subjected, nor

did the Board find that the conclusion on the medical examination independently added to the

credibility of the complainant’s grounds for asylum, including that he had allegedly been

subjected to the torture described by him in the circumstances described by him.

2.2 Article 12, read in conjunction with Article 16, of CAT

The Government observes that it follows from para. 6.2 of the Committee’s decision

concerning this part of the communication that the Committee considers that

it is not

precluded, by the requirements of Article 22, paragraph 5 (b), of the convention, from

examining the present case.

Having thoroughly analysed the Committee’s decision, the Government respectfully suggests

that the decision of the Committee regarding Article 12, read in conjunction with Article 16,

of CAT seems to be based on misunderstandings regarding the facts of the case and the

relevant provisions of Danish law.

The Government believes that those misunderstandings have been decisive for the

Committee’s finding that there has been a violation of Article 12, read in conjunction with

Article 16, of CAT. The Government would therefore like to clarify this matter.

2.2.1 The complainant’s information on the exhaustion of all available domestic

remedies

In his communication of 19 December 2013 to the Committee, the complainant did not

mention at all whether domestic remedies had been exhausted as far as his claim for violation

of Article 12 of CAT is concerned.

In his additional comments to the Committee of 7 October 2014, the complainant stated the

following on page 5 about the exhaustion of domestic remedies:

‘As of 8 january 2014 the prison rejected any wrongdoings and consequently an appeal

was forwarded to the Danish Ministry of Justice as of February 26, 2014. On 22 May

2014 the Ministry of Justice also rejected any violations of CAT and informed counsel

that as far as the police request of handing over the complainant in order to drive him to

the Embassy is an issue for the Courts.

With regard to the issue of exhausting all national remediums please be informed, that

this question was indeed handled by the City Court on December 12, 2013, the High

Court on December 20, 2013. Furthermore counsel asked for permission to have the

case considered by the Supreme court but this was rejected as of on February 20, 2014

and thus all national remedies were exhausted […].’

As regards the use of force in prison and the fact that he was handed over to the Danish police

by the prison staff on 18 December 2013, the complainant stated as follows on page 10:

‘On the contrary the Danish authorities has denied everything and the decision of the

High Court was not allowed appeal to the Danish Supreme court […].’

2.2.2 The Government’s observations on the exhaustion of all domestic remedies

Initially, the Government wants to mention that the complainant refers to four different issues

as one and the same issue in his additional comments to the Committee of 7 October 2014.

However, they relate to four different issues, which must be considered and appealed

separately under Danish law – and which the Committee therefore also ought to consider

separately. Domestic remedies have been exhausted only for

one

of these issues.

The four issues are reviewed in detail below.

1) Detention under section 36 of the Aliens Act:

The complainant was detained from 6 November 2013 until 6 January 2014. The

detention orders were issued by the District Court of Hillerød.

Pursuant to the Danish Administration of Justice Act (retsplejeloven), an appeal of a

detention order issued under section 36 of the Danish Aliens Act (udlændingeloven),

lies to the High Court.

The complainant did not appeal the orders of the District Court of Hillerød to the High

Court at any time. It is observed in this respect that the complainant was represented

by assigned counsel.

As regards the

very issue of detention

under section 36 of the Aliens Act, the

complainant has therefore not exhausted domestic remedies.

Thus, the Committee should not consider this part of the communication, see Article

22 (5) (b) of CAT.

2) Order for the presentation of the complainant at the Turkish Embassy in Copenhagen:

By order of 12 December 2013 issued by the District Court of Hillerød, the District

Court decided to permit employees of the Danish National Police (Rigspolitiet) to

present the complainant at the Turkish Embassy in Copenhagen to have travel

documents issued for him and to order the Danish Prison and Probation Service

(Kriminalforsorgen) to remove him from his cell and commit him to the care of the

police.

This order was appealed to the High Court of Eastern Denmark, and on 20 December

2013 the High Court upheld the order of 12 December 2013 issued by the District

Court.

On 19 February 2014, the Appeals Permission Board (Procesbevillingsnævnet)

decided not to permit an appeal of the High Court order to the Supreme Court.

The Government wants to emphasise that these orders relate exclusively to the

very

issue of the presentation of the complainant at the Turkish Embassy in Copenhagen.

Accordingly, the orders do not relate to the prison officers’ treatment of the

complainant when he was handed over to the police on 18 December 2013 and the

way that he was treated by the police in that connection.

As regards the orders issued by the Danish courts for the presentation of the

complainant at the Turkish Embassy in Copenhagen, domestic remedies have been

exhausted.

Therefore, these orders can be considered by the Committee, see Article 22 (5) (b) of

CAT.

However, the complainant did not state in his communication of 19 December 2013 or

in his additional comments of 7 October 2014 that those orders were allegedly

contrary to CAT.

3) The prison officers’ use of force on 18 December 2013:

On 18 December 2013, the complainant was to be presented at the Turkish Embassy in

Copenhagen to have travel documents issued for him. The complainant refused to

come along voluntarily to the Turkish Embassy, and therefore the Danish Prison and

Probation Service had to remove him from the cell and commit him to the care of the

police. When prison officers fetched the complainant from his cell, he had cuts on his

left forearm and stomach. Shortly after, it was established that the cuts were no longer

bleeding and that the cuts were merely superficial. The complainant had inflicted these

superficial cuts on himself. A sweater was then put on the complainant, and he was

committed to the care of the police. The complainant was also handcuffed to prevent

any additional self-harm. The use of force by the prison staff the same day was

reported in the complainant’s personal file (Annex 4).

In the opinion of the complainant, the treatment of him by the prison officers was

contrary to Article 12, read in conjunction with Article 16, of CAT.

Complaints of the use of force by prison staff could be lodged with the relevant

institution, with the right to appeal the decision to the Department of Prisons and

Probation (Direktoratet

for Kriminalforsorgen).

On 30 December 2013, the

complainant lodged a complaint with the Ellebæk Institution for Detained Asylum-

Seekers of the force used.

On 8 January 2014, the Ellebæk Institution decided that the use of force was justified.

The Ellebæk Institution thus investigated the use of force on 18 December 2013. The

decision has been appended as Exhibit 3. The complainant appealed the decision to the

Department of Prisons and Probation the same day.

On 22 May 2014, the Department of Prisons and Probation made the decision that the

use of force on 18 December 2013 had been justified. To this end, the Department of

Prisons and Probation made an investigation of the justification of the use of force.

The decision has been appended as Exhibit 4.

The Government observes in this connection that the complainant has transmitted

neither the decision made by the Ellebæk Institution on 8 January 2014 nor the

decision made by the Department of Prisons and Probation on 22 May 2014 to the

Committee even though both decisions were available when the complainant

transmitted his additional comments to the Committee on 7 October 2014.

Pursuant to section 63 of the Danish Constitution (grundloven), the decision made by

the Department of Prisons and Probation on 22 May 2014 can be brought before the

Danish courts.

The complaint rules were revised as of 6 May 2015 with the effect that appeals can now

be lodged directly with the Department of Prisons and Probation.

However, the complainant, who was represented by counsel, did not bring the decision

before the Danish courts.

The complainant has therefore not exhausted domestic remedies as regards his

complaint of the

use of force by the prison staff

on 18 December 2013.

Thus, the Committee should not consider this part of the communication, see Article

22 (5) (b) of CAT.

As regards the observations of the Committee in para. 7.7 that

‘despite the appearance

of the complainant clearly showed that he had been injured and despite his subsequent

complaints, no investigation appears to have been initiated into the events’,

the

Government points out as a matter of form that both the Ellebæk Institution and the

Department of Prisons and Probation investigated the justification of the use of force

against the complainant on 18 December 2013.

Finally, the Government observes that, in case he had considered it a criminal offence,

the complainant could have reported the matter to the police. However, the

complainant, who was represented by counsel, did not file any report.

4) Handling of the complainant by the police on 18 December 2013:

On 18 December 2013, the complainant was handed over to the police, who were to

present him at the Turkish Embassy in Copenhagen to have travel documents issued

for him. According to the police report of 18 December 2013, the police officers had

been informed by the prison staff on their arrival at the Ellebæk Institution that the

complainant himself had inflicted superficial wounds on his left forearm and his

stomach. The police could very soon establish that the bleeding from the wounds had

ceased. A sweater was then put on the complainant, and a jacket was brought along in

the police car. Afterwards, the complainant was calm and quiet during the drive to

Copenhagen.

The complainant did not state in his communication of 19 December 2013 to the

Committee that the way that he had been handled by the police on 18 December 2013

was allegedly contrary to CAT. Nor does the complainant appear to have made any

claim in his additional comments of 7 October 2014 alleging that the way that he was

handled by the police was contrary to CAT.

If the complainant had wanted to complain of police misconduct, such complaint

could have been directed to the Independent Police Complaints Authority (Den

Uafhængige Politiklagemyndighed).

The complainant, who was represented by

counsel, never lodged any complaint with the Independent Police Complaints

Authority of police misconduct.

If the complainant had wanted to complain of the practice, policy or procedure of the

police in connection with his detention (e.g. proper means of force used by the police

and police use of force), such complaint could be lodged with the Danish National

Police, with the right to appeal the decision to the Ministry of Justice

(Justitsministeriet). The complainant, who was represented by counsel, never lodged

any complaint of police practice, policy or procedure in connection with his detention.

Hence, the complainant has not exhausted domestic remedies. (knudret sætning som

ikke ses at være nødvendig)

Thus, the Committee should not consider this part of the communication, see Article

22 (5) (b) of CAT.

As regards the following observations of the Committee in para. 7.7:

‘despite the

appearance of the complainant clearly showed that he had been injured and despite

his subsequent complaints, no investigation appears to have been initiated into the

events. On the contrary, the police accepted at face value the explanation that the

complainant had hurt himself, no medical examination was conducted and the police

officers proceeded with his forcible delivery to the Turkish Embassy’,

the Government

observes as a matter of form that the police could very soon establish by inspecting the

complainant that the bleeding from his superficial wounds had ceased and that the

complainant did not mention at any time when he was handed over to the police or in

his communication to the Committee that the cuts had not been self-inflicted.

Accordingly, the complainant did not have any injuries other than self-inflicted

wounds. Finally, it is observed that an investigation has been made of the force used

by prison staff to restrain the complainant. For further details see part 3 below.

Against this background, the Government finds that the decision adopted by the Committee

on 23 November 2015 as regards Article 12, read in conjunction with Article 16, of CAT is

based on misunderstandings of facts and law on essential points, and that those

misunderstandings have been decisive for the Committee’s conclusion that CAT has been

violated.

General measures taken to give effect to the decision of the Committee

The Government observes that, when exercising their powers under the Aliens Act, the

Danish Immigration Service and the Refugee Appeals Board are legally obliged to take

Denmark’s international obligations into account, including the jurisprudence of the

Committee.

The decision adopted by the Committee in the case at hand will therefore be taken into

account by the Danish Immigration Service and the Refugee Appeals Board in their

assessment of Denmark’s international obligations.

It is observed that, at its meetings, the Coordination Committee of the Refugee Appeals Board

is always informed of any new decisions or views adopted by the Committee against

Denmark in which a violation is found to have occurred in cases involving asylum-seekers.

The Coordination Committee meets every two months. All members of the Refugee Appeals

Board receive a copy of the minutes of Coordination Committee meetings.

In addition, decisions adopted by the Committee will be reported in the annual report of the

Refugee Appeals Board. The annual report of the Refugee Appeals Board is distributed to all

members of the Board for use in their work on the Board and is publicly available on the

website of the Board. The annual report of the Refugee Appeals Board includes a chapter on

cases brought before international bodies. This chapter comprises a general paragraph on the

relevant conventions and a review of the decisions and views transmitted to Denmark during

the reporting year.

The Government further observes that, when exercising their powers under Danish law, police

and prison officers are also legally obliged to take Denmark’s international obligations into

account, including the jurisprudence of the Committee. The decision adopted by the

Committee in the present case has also been forwarded to the Prison and Probation Service

and the Danish National Police.

Moreover, the Government observes that the Ministry of Foreign Affairs (Udenrigs-

ministeriet)

has made the Committee’s decision publicly available on its website

(www.um.dk).

Conclusion

4.1 Article 3 of CAT

As appears from part 2.1, the complainant’s asylum case was reopened on the basis of the

decision adopted by the Committee on 23 November 2015, and subsequently, on 14 March

2016, the case was reconsidered by the Refugee Appeals Board at an oral hearing before a

new panel,

inter alia,

in light of the report made by Amnesty International on the medical

examination produced by the complainant and the Committee’s decision on the present case.

In its decision of 17 March 2016, the Refugee Appeals Board found that the complainant has

failed to render probable his grounds for asylum, and for this reason the Board refused the

complainant’s application for residence under section 7 of the Aliens Act.

4.2 Article 12, read in conjunction with Article 16, of CAT

As mentioned in part 2.2.2 above, the Government is of the opinion that the decision adopted

by the Committee on 23 November 2015 is based on misunderstandings of facts and law on

essential points, and that those misunderstandings have been decisive for the Committee’s

conclusion that CAT has been violated.

Against this background, the Government kindly asks the Committee to reconsider this part of

the communication, taking into account the issues raised in part 2.2.2.

The Government remains at the disposal of the Committee should any further information or

observations be required.

A copy of these follow-up observations has been forwarded to Mr Niels-Erik Hansen, counsel

for the complainant.