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CAT/C/34/D/195/2002
Page 9
the Algerian air force addressed to his family home; both are extremely succinct and merely
request him “to present himself to the air force authorities in Béchar for a matter concerning
him”, without further details or any mention of his rank or former rank. In the State party’s view
it is very difficult to believe that the complainant was unable to produce any other document to
substantiate the fears he expressed.
8.4
Secondly, even if the complainant did establish that he was a fighter pilot and a deserter,
his account contains various contradictions and implausibilities that discredit the fears invoked.
In particular, he maintains that in early March, when along with another pilot he refused to
participate in bombing operations against the civilian population, he knew that he risked heavy
penalties by refusing to obey orders; he points out that such penalties were more severe for
officers and, given the situation in Algeria, would have been handed down in time of war and
included the death penalty for officers. While the other pilot had been shot on the spot for
disobeying orders, the complainant had apparently been released after only three months in
prison for the same conduct, his only punishment, once he had been cleared of suspected Islamist
sympathies, being that he was forbidden to fly and assigned to the airbase. When he deserted
from the airbase and fled to his family’s village, an attempt was supposedly made to kill the
complainant with a submachine gun fired from an intelligence vehicle: his neighbour was killed
on the spot while he himself - the sole target - escaped once again.
8.5
The State party considers that the complainant’s personal conduct renders his claims
implausible. While he claims to have deserted in 1994 on humanitarian grounds as a
conscientious objector, consciously exposing himself to the risk of very severe punishment, his
humanitarian concerns seem totally at odds with his violent criminal conduct on arrival in France
and subsequently. Scarcely a year after supposedly deserting on grounds of conscientious
objection, the complainant perpetrated a common crime of particular gravity, namely, aggravated
rape under threat of a weapon, and while in prison for that crime showed he was a continuing
danger to society by making two violent attempts to escape.
8.6
In any case, the State party maintains that the complainant’s alleged fears cannot be held
to represent a serious danger of torture and inhuman or degrading treatment within the meaning
of article 3 of the Convention. The complainant maintained that he faced two kinds of danger in
the event of being sent back to Algeria: one, the result of his deserting, consisting in the
punishment laid down in the Algerian military criminal code for such cases; the other related to
the possibility that he might in the future again be accused of Islamist sympathies. The State
party considers that the danger of imprisonment and other criminal penalties for desertion does
not in itself establish a violation of article 3 of the Convention since these are the legal
punishments for an ordinary offence in the estimation of most States parties to the Convention.
It is important to note that, although the complainant maintains that punishment in the event of
desertion may in extreme cases extend to the death penalty, he does not claim that he himself
would incur that penalty. In fact, according to the State party, he could not: it emerges from his
own account that his desertion was an individual act, unrelated to combat operations, after he had
been suspended from flying and assigned to the airbase, while it emerges both from his written
submission and from details of Algerian legislation compiled by Amnesty International and
submitted on the complainant’s behalf that the death penalty might possibly be applicable only in
the case of a group desertion by officers. Secondly, although the complainant maintains that he
was suspected of Islamist sympathies and tortured under questioning after refusing to obey