Convention.
7.3The Committee considers that, when detention of refused asylum seekers is applied as a last resort, its duration should be limited,
medical checks upon arrival in detention facilities should be ensured, and a medical and psychological follow-up by a specially trained
independent health expert should be provided when signs of torture or traumatization have been detected during the asylum
proceedings.In the instant case, the Committee notes that the overall duration of the complainant’s detention was less than three
months and that both the initial detention and its extensions underwent judicial reviews. The Committee further notes that the
complainant received a psychiatric examination on 6 July 2009, some three weeks after his detention in Ellebaek Institution, and was
given medication. In the circumstances, the Committee concludes that the detention of the complainant did not amount to violations of
article 16 and of article 2 of the Convention.
Exclusion from association
7.4With regard to the question of whether the author’s detention in “exclusion from association” constituted a separate violation of
article 16, the Committee notes the State party’s argument that the temporary exclusion from association pursuant to the Sentence
Enforcement Act was applied as necessary, for a limited period of time, and was proportionate to a legitimate objective of preventing
violent behavior, and that it was not contrary to article 16, given the overall assessment of the circumstances of the complainant’s
involvement in the violent unrest that broke out in the Ellebaek Institution on 9 August 2009. The Committee considers that the
particular conditions of solitary confinement, the stringency of the measure, its duration, the objective pursued and its effect on the
person concerned must all be taken into account when determining whether or not it amounts to a violation of article 16 of the
Convention. The Committee notes that the complainant’s exclusion from association did not exceed four days; that during that period
of time he was visited by his girlfriend, his lawyer, a psychologist and a medical doctor; and that he had a television in his cell. In the
circumstances, the Committee concludes that the complainant’s detention in exclusion from association did not amount to a separate
violation of article 16 of the Convention.
Article 12 claim
7.5The Committee notes that counsel alleges a violation of article 12 of the Convention, since the State party did not conduct an
investigation after the report was filed by Mr. Sørensen and Ms. Genefke on 5 August 2009 and since, moreover, the complainant
was removed from the territory of the State party before any examination of the complaint that his detention constituted a violation of
the Convention had taken place. In this context, the Committee notes the State party’s statement that the complaint submitted by Mr.
Sørensen and Ms. Genefke during the complainant’s detention, preceding his temporary exclusion from association, did not constitute
reasonable grounds to initiate an investigation under article 12 of the Convention, since it did not refer to any instances of torture or
ill-treatment other than a general reference to the negative effects of the detention on the complainant’s health. The Committee further
notes the State party’s assertion that the complainant did not, at any time, allege that he had been subjected to any mistreatment
during his detention.
7.6The Committee recalls its jurisprudence on the contents and scope of article 12, according to which State authorities have the
obligation to proceed to an investigation ex officio, wherever there are reasonable grounds to believe that acts of torture or illtreatment have been committed. In the instant case, however, no allegations have been made by the complainant or on his behalf that
he had been subjected to acts of torture or ill-treatment other than the general allegation that his detention as such, in the light of his
particular vulnerability as a former victim of torture, amounted to a violation of the Convention. The Committee recalls its previous
jurisprudence that an investigation under article 12 must seek both to determine the nature and circumstances of the alleged acts and
to establish the identity of any person who might have been involved therein. In the circumstances of the present case, where the
sheer fact of detention was alleged to constitute the violation of the Convention, the Committee considers that no reasonable purpose
would have been served by such an investigation. Accordingly, the Committee considers that the facts before it do not disclose a
violation of article 12 of the Convention by the State party.
Article 3 claim
7.7 The last issue before the Committee is whether the forced removal of the complainant to Iraq violated the State party’s obligation
under article 3 of the Convention not to expel or return a person to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture. The Committee must evaluate whether there are substantial grounds for
believing that the complainant would have been personally in danger of being subjected to torture.
7.8 In assessing the risk, the Committee must take into account all relevant considerations pursuant to article 3, paragraph 2, of the
Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. It follows that the
existence of a pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient reason for
determining that a particular person would be in danger of being subjected to torture on return to that country; additional grounds
must be adduced to show that the individual concerned would have been personally at risk. Conversely, the absence of a consistent
pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific
circumstances.
7.9 The Committee recalls that the aim of such determination is to establish whether the individual concerned would have been
personally at a foreseeable and real risk of being subjected to torture on return to that country. The Committee also recalls itsgeneral
comment No. 1 on the implementation of article 3, in which it stated that“the risk of torture must be assessed on grounds that go
beyond mere theory or suspicion”, but that“the risk does not have to meet the test of being highly probable”, and thatthe risk must be
personal and present. In this regard, in previous decisions, the Committee has determined that the risk of torture must be foreseeable,
real and personal.The Committee further recalls that, in accordance with its general comment No. 1, it gives considerable weight to
findings of fact that are made by organs of the State party concerned, while at the same time it 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