Communication No. 45/1996
by: D. (name deleted) (represented
victim: The author
of communication: 13 December 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 10 November 1997,
Adopts the following decision:
Decision on admissibility
The author of the communication is D., a citizen of the
Democratic Republic of the Congo (formerly Zaire), born
on 25 May 1959, currently residing in France. He is represented
by the Association pour la formation, l'insertion et le
développement rural en Afrique (AFIDRA).
submitted by the author
The Association states that D. is a member of the Union
pour la démocratie et le Progrès Social and participated
in activities for that party in Zaire, such as printing
leaflets and posters. On 13 February 1990, he was arrested
by the Division Spéciale Présidentielle (Special Presidential
Division) on the grounds of a breach of public order. He
was held for three months in prison without being tried
or brought before a judge, and was subjected to ill-treatment
by his prison warders. The author states that after his
family intervened he was provisionally released on 20 May
1990 and told to report to the police once a month. However,
in his request to the Office Francais de Protection des
réfugiés et Apatrides (French Office for the Protection
of Refugees and Stateless People) on 16 August 1990, D.
stated that he had escaped from prison on 20 May 1990, and
a "wanted" notice confirming this statement is enclosed
by the author.
It is submitted that, following the massacres of students
at Lubumbashi in May 1990, D. was again suspected of printing
leaflets, and decided to leave the country with a false
passport and visa. He entered France through Belgium on
1 August 1990.
On 16 August 1990, D. filed a request for refugee status,
which was turned down by the Office Francais de Protection
des Réfugiés et Apatrides on 24 August 1990, on the grounds
that the alleged facts and risk of persecution were not
sufficiently substantiated. His appeal was then rejected
by the Commission de Recours des Réfugiés (Commission of
Appeal in Refugee Matters) on 22 February 1991. As a result,
his application for a residence permit was refused by the
police authorities of Paris on 2 May 1991, and D. was ordered
to leave France by 2 June 1991. Despite this, he apparently
stayed in France.
On 15 July 1993, D. filed a further request on the grounds
of his father's alleged murder in Zaire on 10 July 1993,
which was rejected by the Office Francais des Réfugiés,
et Apatrides. His appeal was again rejected on 17 December
1993 by Commission de Recours des Réfugiés, on the grounds
that there were no new facts, since he had stated that the
political situation in Zaire had not changed. It is submitted
that D. was unable to file an appeal against this decision
with the Conseil d'Etat, because he was not provided with
Following an order of escort to the frontier (arrêté
de reconduite à la frontière), D. was arrested in 1994
during an identity check and kept for 48 hours in custody
and 6 days in detention. He then had to be released because
there was no flight available for his deportation to Zaire.
D. claims that he only heard of the order of escort to the
frontier when he was already under arrest. In this connection,
it is submitted that the order apparently had been sent
by registered mail, and that the French post office does
not hand over mail to foreigners without residence permits.
It is further stated that no arrest warrant was shown to
D., although he had requested it in order to appeal against
his arrest. It is submitted that it was for that reason
that D. was not able to appeal against the order of escort
to the frontier or against his arrest.
D. says that he fears for his life if forced to return to
the Democratic Republic of the Congo.
party's observations on the admissibility of the communication
By submission of 29 April 1997, the State party argues that
the communication is inadmissible because domestic remedies
had not been exhausted.
The State party explains that any foreigner whose appeal
has been definitively rejected by the Commission de Recours
des Réfugiés is requested to leave French territory within
a month of being notified of the decision. The decision
is notified by registered letter with acknowledgement of
receipt delivered to the address given by the person concerned.
If the person is not at home when the postal official delivers
the letter, a notice is left at the address informing the
person that the letter may be collected at the post office
indicated on the notice. According to the State party, the
postal administration, contrary to the author's allegations,
usually hands over the letter if the recipient can show
proof of identity, and is not responsible for judging the
validity of the residence permit shown, with respect to
its expiry. The summons to leave the territory states that
the person concerned has 15 days to submit comments, especially
regarding any risks he may be exposed to in the event of
returning to his country of origin.
The State party argues that several appeal procedures were
available to D., and that he did not use them. According
to the State party, he was entitled to submit an application
for judicial review to the Conseil d'Etat against the Commission's
decisions of 28 February 1991 and 17 December 1993. Secondly,
he could have requested the cancellation of the summons
to leave French territory before the administrative court.
Lastly, the State party points out that D. did not appeal
against the order of escort to the frontier dated 25 November
1991. The State party says that the law allows a specific
appeal against orders of escort to the frontier to be lodged
before the judge for escort to the frontier of the administrative
court with territorial jurisdiction. Such appeal must be
lodged within 24 hours of the order being notified. On hearing
the appeal, the judge has 48 hours to issue a ruling, during
which time proceedings are suspended. When the appeal has
been submitted, the judge must, where appropriate, entertain
the complaint that the person concerned runs the risk of
being subjected to torture or to inhuman and degrading treatment
in the event of a return to the country of origin, in conformity
either with international rules, or with rules of domestic
In his comments on the State party's observations, the author
alleges that many post offices will not hand over registered
mail to persons without a residence permit who show only
a passport or a residence permit which has expired, even
though they have no legal authority to decide whether a
residence permit is valid or not. According to the author,
some post offices even go so far as to call the police if
a foreigner appears without a residence permit.
As for the appeal for judicial review, the author explains
that this appeal is admissible only on legal grounds, and
must be submitted by a lawyer. The author also maintains
that decisions of the Conseil d'Etat suffer considerable
delays and do not have the effect of suspending proceedings.
With regard to the order of escort to the frontier, the
author claims that he never received the summons and was
first acquainted with it only when questioned by police.
He claims that by the time he had been informed by the police,
it was too late to appeal, since appeals have to be lodged
within 24 hours of notification.
and proceedings before the Committee
Before considering any claim in a communication, the Committee
against Torture must decide whether or not it is admissible
under article 22 of the Convention.
Article 22, paragraph 5 (b), of the Convention precludes
the Committee from considering any communication unless
it has ascertained that all available domestic remedies
have been exhausted. That rule does not apply, however,
if it is established that remedies have been or might be
unreasonably prolonged or that they are unlikely to bring
effective relief to the alleged victim. In the present case,
the author acknowledged that he had not exhausted all available
remedies provided for under French law –before the
Conseil d'Etat against the decision of the Commission de
Recours des Réfugiés, before the administrative court against
the order to leave the territory, or before the administrative
tribunal against the order of escort to the frontier. The
reasons given by the author do not show that such appeals
were unlikely to succeed. The Committee therefore finds
that the conditions stipulated in article 22, paragraph
5 (b), of the Convention have not been met.
The Committee therefore decides:
That the communication is inadmissible;
That this decision shall be notified to the author of the
communication and to the State party.
in French (original version), and translated into English,
Spanish and Russian.]