Disabled Chinese case

Concerning Mr. C.Y vs. Denmark violation of CAT article 3.

The Chinese applicant belonged to a Christian organisation named Quan Neng Shen. The members of the organisation met everyday and held church services. In 2007, the Chinese government labelled the organisation as being against the communist party and against the government. The government wanted to make sure that the Christian organisation did not exist. The government started arresting the members, and placing them with seasoned criminals. The authorities even supported the criminals in beating the applicant and the other members.

The applicant was arrested in May 2012. The applicant had been beaten everyday. The applicant had been detained for 18 months, and he was only released from prison after he had been beaten on the head, had been unconscious for seven days, had brain hemorrhage, and had become disabled due to a broken knee.

After his release, the applicant had not attended church services or met with other members from the organisation, because the police contacted persons in the village, and kept an eye on the applicant at all times. In February 2014, the applicant heard that the police was starting to arrest people again, so he planned his escape and fled to Denmark.

The applicant entered Denmark on 19 or 20 June without valid travel documents. The applicant applied for asylum on 24 June 2014. On 21 October 2014, the Danish Immigration Service refused asylum to the applicant. On 9 December 2014, the Danish Refugee Board upheld the refusal as they found that the applicant had made inconsistent and incoherent statements on crucial elements of his case. By letter of 17 December 2014, the applicant brought the case before the Committee against Torture. By letter of 22 December 2014, the Committee forwarded the complaint to the Government and requested them to refrain from returning the applicant to China while his case is being considered by the Committee.

The Refugee Board then invited the author for another board hearing on 17 February 2017 and after the hearing, the author’s application for asylum was rejected yet again. Thus the case is still pending at CAT.

In case of return to his country of origin, the applicant fears being arrested by the authorities and taken to prison again, where he would most certainly be beaten and die from his injuries. The applicant is sure that he will get arrested, because he has heard that the government in China will eliminate all kinds of house congregations. A police officer also told the applicant that their Christian organisation was to be annihilated, and that the members would be annihilated.

Under article 3 of CAT, member states are under an obligation not to deport persons who are in risk of torture on return. Consequently, it is argued that Denmark is in violation of CAT article 3 subsection 1 by deporting the applicant to China.

This should be measured from the lack of investigation into the matter (no medical torture examination), and the lack of a reasoning in the decision by the board, as to why he has no reason to fear torture on return. Consequently, this is a violation of CAT article 3, subsection 2. During the processing of the case, it was argued by the author that he had suffered from torture, but no medical examination was initiated by the Danish authorities.

In an earlier case similar to this one (CAT 580/2014), the Committee stated that while the State Party had raised serious credibility concerns, the Refugee Board drew an adverse credibility conclusion without adequately exploring a fundamental aspect of the authors claim. The committee therefore found that the State Party failed to sufficiently investigate, whether there were substantial grounds for believing that the complainant would be in danger of being subjected to torture on return. On this basis, a medical examination should be issued in this case as well.

In a report from Amnesty International the medical experts concluded that:

“There is full compatibility of the examined physical and mental injury and torture story and hence underpin the torture story greatly.”

The final decision by the Refugee Board to deny such a torture examination was based solely on an assessment of the author’s credibility, and thus his failure to establish a connection between his religious activities for the Almighty God and his physical injuries. It seems like the Danish authorities are applying a standard that first the author must prove that he was tortured and then he must also prove that the torture was inflicted on him because of his religious activities. It is possible to prove that he was tortured, but it is not possible to get a certificate that the torture was because of his activities.

29. October 2020

CAT 647/2014
Comm: Torture