CAT/C/46/D/319/2007
7.4
Accordingly, the Committee decides that the complaint is admissible as pleaded in
respect of the alleged violations of article 3 of the Convention.
Consideration of the merits
8.1
The Committee must evaluate whether there are substantial grounds for believing
that the complainant would be personally in danger of being subjected to torture upon
return to India.
8.2
The Committee notes the State party's argument that the human rights situation in
the Punjab and in India has improved and stabilized in recent years. It observes, however,
that reports submitted both by the complainant and the State party, confirm inter alia that
numerous incidents of torture in police custody continue to take place, and that there is
widespread impunity for perpetrators. The Committee observes that the existence of a
consistent pattern of gross, flagrant or mass violations of human rights in a country does not
as such constitute a sufficient ground for determining that a particular person was in danger
of being subjected to torture upon his return to that country; additional grounds must exist
to show that the individual concerned was personally at risk.6
8.3
The Committee notes that State party’s submission that it is not the role of the
Committee to weigh evidence or reassess findings of fact and credibility made by
competent domestic decision-makers. According to the General Comment No. 1, paragraph
9, the Committee gives “considerable weight (…) to findings of fact that are made by
organs of the State party concerned (…) but the Committee is not bound by such findings
and instead has the power, provided by article 22, paragraph 4, of the Convention, of free
assessment of the facts based upon the full set of circumstances in every case”. The
Committee notes that in the case under analysis, most of the facts are undisputed by the
parties, however the assessment of the legal consequences of the relevant facts are
challenged. In this situation, the Committee should assess the facts in light of the State
party’s obligations under the Convention.
8.4
The Committee observes that the complainant submitted evidence in support of his
claims that he was tortured during detention on at least three occasions, in 1988, 1995 and
2003, including medical reports, as well as written testimony corroborating these
allegations. It also notes the medical reports from clinics in India and Canada, which
conclude that there is sufficient objective physical and psychological evidence
corroborating his subjective account of torture and that the State party has not contested the
complainant’s allegations that he had been subjected to torture in the past.
8.5
The Committee notes the State party’s submission that the complainant has failed to
demonstrate that he is a “high profile” person and therefore that he would be of interest for
the Indian authorities. However, the Committee notes that the complainant contends he was
detained and tortured because he was accused of being a militant, that despite his formal
acquittal by the courts, the police continued to harass him, that he is well known to the
authorities because of his activities as a Sikh priest, his political involvement with Akali
Dal party and his leadership role in the local structures of the party. The Committee
observes that the complainant has provided documentary evidence that he has a history of
being investigated and prosecuted as an alleged Sikh militant, that he was appointed as
Secretary General of the Haryana unit of the Akali Dal party and that he served as a Sikh
priest. The Committee accordingly considers that the complainant has provided sufficient
evidence that his profile is sufficiently high to put him at risk of torture if arrested.
6
10
See A.M. v. France, complaint No. 302/2006, Views of 5 May 2010, para 13.2; S.P.A. v. Canada,
complaint No. 282/2005, Views of 7 November 2006, para 7.1.