Communication No. 36/1995
Submitted by: X
Alleged victim: The author
State party: The Netherlands
Date of communication: 17 November 1995
The Committee against Torture, established under
article 17 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment,
Meeting on 8 May 1996,
Having concluded its consideration of communication
No. 36/1995, submitted to the Committee against Torture under article
22 of the Convention,
Having taken into account all information made
available to it by the author of the communication, his counsel and
the State party,
Adopts the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is X, a Zairian citizen,
at the time of submission of the communication awaiting his deportation
from the Netherlands. He claims that his return to Zaire would be in
violation of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. He is represented by counsel.
Facts as submitted by the author
2.1 The author states that he is a sympathizer of the
political movement Union pour la Démocratie et le Progrès Social (UDPS).
In 1992 he was arrested with many others during a mass demonstration
and kept in detention for several days. The author states that he was
beaten with a rope with wire in it. In 1993, the author was again arrested
and kept in detention for a few days. After his release, he left the
2.2 The author's request for political asylum in the Netherlands
was rejected by the State Secretary of Justice. The Secretary accepted
that the author had been detained twice, but considered that nothing
indicated that he was perceived as an important political opponent by
the Zairian authorities. In this connection, the Secretary noted that
the author had not been harassed by the authorities in the period between
his first and second arrest.
2.3 The author subsequently requested a review of this
decision and requested the President of the Court in The Hague to grant
provisional measures to defer his expulsion until a decision on his
request for review had been taken. The author's request was rejected.
The President considered that the situation in Zaire was not such as
to justify a general prohibition of returning persons to the country.
He found that the author had failed to show that he personally was at
risk of being detained and tortured upon return. In this connection,
the President considered that the author's activities in support of
UDPS had only been marginal and that he was not known as a political
3.1 The author claims that his forced return to Zaire
would lead to him being killed because of his political activities.
Counsel adds that he fears being detained and tortured upon return.
3.2 The author asks the Committee to request the Netherlands
to take interim measures of protection and not to expel him while his
communication is under consideration by the Committee.
The State party's observations on the admissibility
and on the merits of the communication
4.1 In its submission, dated 22 January 1996, the State
party acknowledges that X has exhausted domestic remedies, and does
not raise any objections to the admissibility of the communication.
In accordance with the request of the Committee. The author will not
be expelled while his communication is under consideration by the Committee.
4.2 As to the merits, the State party begins by explaining
the refugee determination process in the Netherlands. Asylum applications
in the Netherlands are dealt with by the Immigration and Naturalization
Service under the responsibility of the State Secretary for Justice.
In addition to the information supplied by the individual, the Immigration
and Naturalization Service, when assessing individual applications for
asylum, also takes into consideration the findings of the Netherlands
Ministry of Foreign Affairs concerning the asylum seeker's country of
origin which are laid down in Ministry reports (ambtsberichten)
as well as information supplied by the Office of the United Nations
High Commissioner for Refugees and organizations such as Amnesty International.
4.3 The State party states that decisions on asylum applications
can be contested before five District Courts (rechtbanken). In
addition a Legal Uniformity Division (rechtseenheidskamer)has
been set up which has the task of promoting legal uniformity in the
judgements and which has given a normative judgment in the case of Zaire,
on 3 November 1994.
4.4 The State party states that if medical factors play
a role in an asylum case, or if the asylum seeker concerned claims to
have been ill-treated or tortured, the INS may request the Medical Inspector
of the Ministry of Justice to give an opinion. The Medical Inspector
himself may examine the individual or apply for information from a medical
practitioner who has treated the individual. The State party adds that
the individual himself can always request a further medical examination,
or independently consult a medical practitioner.
4.5 The State party submits that the current conditions
in Zaire give rise to concern but are not such as to justify the adoption
of a general principle that asylum seekers whose applications have been
rejected should not be repatriated. In support of its statement, the
State party refers to the Committee's views in communication No. 13/1993,
/ Mutombo v. Switzerland, views adopted on 27 April
1994, paragraph 9.3 (see Official Records of the General Assembly,
Forty-ninth Session, Supplement No. 44 (A/49/44), annex V, sect.
B)./ where the Committee held: "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 person
would be in danger of being subjected to torture upon his return to
that country; additional grounds must exist that indicate that the individual
concerned would be personally at risk". The State party therefore
considers it incumbent upon asylum seekers from Zaire to demonstrate
that specific facts and circumstances apply in their particular case
to justify that risk.
4.6 The State party states that in assessing the circumstances
of the individual asylum seeker from Zaire, the guiding principle is
the consideration by the Legal Uniformity Division in the above-mentioned
judgement of 3 November 1994, that a Zairian national who has previously
been detained and who is therefore known to the authorities is at greater
risk to be apprehended upon return and to be detained again. The Court
considered that asylum seekers who can demonstrate sufficiently convincingly
that they belong to this group should therefore be granted a residence
permit for compelling reasons of a humanitarian nature. In this context,
the State party explains that detention should be understood as "registered
detention", that is, a detention that has lasted for a substantial
period of time. If it is found that a registered detention has occurred,
the asylum seeker is granted a residence permit for compelling reasons
of a humanitarian nature.
4.7 As to the author's claim, the State party states that
his asylum application was examined in the light of the Geneva Convention
on the Status of Refugees and article 3 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms.
4.8 The State party states that the author's membership
of UDPS in itself is not sufficient to assume that he has a well-founded
fear of persecution. The Court has ruled that as UDPS is a recognized
political opposition party in Zaire, and the author's activities for
this party have been only marginal, it is not likely that the Zairian
authorities have taken a negative interest in him. Furthermore, the
State party asserts that on his first arrest, the author agreed that
he was apprehended together with a large number of other people, clearly
at random. The second arrest was likewise not an action directed against
the author personally.
4.9 The State party states that when the author was first
questioned by an official of the Immigration and Naturalization Service,
he claimed that he had been subjected to ill-treatment and showed his
scars. The scars were however not such as to prompt the official to
request a detailed medical examination. Furthermore, the State party
states that neither the individual nor his authorized representative
requested such an examination at any time during the proceedings. Equally,
the author did not decide to have himself examined by another medical
practitioner in order to produce a medical certificate. Nor did the
Court consider a medical examination to be necessary.
4.10 The State party endorses the position adopted by
the Netherlands courts that it cannot be anticipated on the basis of
the facts that X is so well-known to the Zairian authorities that he
will be arrested if he returns to Zaire. Furthermore, according to the
State party, the swift release after his second arrest suggests that
the Zairian authorities do not regard him as the perpetrator of activities
that pose a threat to the State, unlike the case of Mr. Mutombo
/ Mutombo v. Switzerland, communication No. 13/1993, views
adopted on 27 April 1994./ who was sentenced by a military court to
a long term of imprisonment.
5.1 In her comments on the State party's submission, dated
5 March 1995, counsel states that the Dutch Alien Act allows for the
possibility that a single judge in chambers decides on the question
whether expulsion would contradict article 33 of the Geneva Convention.
If the judge decides that the request for political asylum is manifestly
unfounded, the procedure ends with that decision. In such a case, like
the author's, there is no possibility of full judicial review or appeal.
Although the Legal Uniformity Division sets out rules to be observed,
a decision by a single judge can lead to judicial error in individual
cases. Counsel refers to several decisions, where individuals in similar
circumstances as the author's, were given the right to stay in the Netherlands.
5.2 Furthermore, counsel states that the confidential
sources of the Ministry of Foreign Affairs are unreliable and that in
several cases of Zairian asylum seekers, in which the Ministry reported
that they had not been registered while detained, these reports were
5.3 Furthermore, the author does not agree that his name
has not been registered by the Zairian secret service, and that he will
not be detained by the secret service upon return. To support his position,
counsel states that it is known that members and sympathizers of UDPS
are at risk when sent back to Zaire. The formal opinion of the Government
of the Netherlands that it is able to predict which asylum seekers were
registered by the authorities while detained, has in specific cases
been found to be untrue.
5.4 Finally, counsel submits a note by the author's medical
doctor, who states that he found scars on the back of the author that
could very well be caused by beating. Counsel emphasizes that the State
party has never questioned the fact that the author was beaten during
detention. It is submitted that, if the author fell into the hands of
the security forces at the airport (which is likely because of the lack
of a valid travel document) his scars alone would give him away as a
member of the opposition.
Decision on admissibility and examination of the
6. Before considering any claims contained in a communication,
the Committee must decide whether or not it is admissible under article
22 of the Convention. The Committee has ascertained, as it is required
to do under article 22, paragraph 5 (a), of the Convention, that the
same matter has not been and is not being examined under another procedure
of international investigation or settlement. The Committee notes that
the State party has not raised any objections to the admissibility of
the communication and that it has requested the Committee to proceed
to an examination of the merits. The Committee finds therefore that
no obstacles to the admissibility of the communication exist and proceeds
with the consideration of the merits of the communication.
7.1 The issue before the Committee is whether the forced
return of the author to Zaire would violate the obligation of the Netherlands
under article 3 of the Convention not to expel or to return a person
to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture.
7.2 Article 3 reads:
"1. No State party shall expel, return ("refouler")
or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected
"2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned
of a consistent pattern of gross, flagrant or mass violations of
The Committee must decide, pursuant to article 3, paragraph
1, whether there are substantial grounds for believing that the author
would be in danger of being subject to torture. In reaching this conclusion,
the Committee must take into account all relevant considerations, pursuant
to article 3, paragraph 2, including the existence of a consistent pattern
of gross, flagrant or mass violations of human rights. The aim of the
determination, however, is to establish whether the individual concerned
would be personally at risk of being subjected to torture in the country
to which he would return. It follows 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 person would be in danger of being subjected to torture upon his return
to that country; additional grounds must exist to indicate that the
individual concerned would be personally at risk.
8. The Committee notes that the author has claimed that,
during his first detention, he was beaten with a rope with wire in it.
Although not explicitly corroborated by the medical note submitted by
the author, the Committee is prepared to find that X was maltreated
during his first detention in Zaire. The Committee also notes that the
author has not claimed that he was tortured during his second detention.
Finally, the Committee notes that the periods of the author's detention
have been short, that the author has not claimed that he was an active
political opponent and that there is no indication that the author is
being sought by the authorities in his country. Therefore, the Committee
considers that the author has not substantiated his claim that he will
be personally at risk of being subjected to torture if he is returned
9. The Committee against Torture, acting under article
22, paragraph 7, of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, is of the view that the
facts as found by the Committee do not reveal a breach of article 3
of the Convention.
[Done in English, French, Russian and Spanish, the English
text being the original version.]