victim: The author
communication: 10 July 1998
against Torture, established under article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
on 9 May 2000,
concluded its consideration of communication No. 116/1998, submitted
to the Committee against Torture under article 22 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
taken into account all information made available to it by the
author of the communication and the State party,
the following decision:
1.1 The author
of the communication is Mr. N.M., a citizen of the Democratic Republic
of the Congo (DRC) born on 10 January 1968 and currently residing
in Switzerland, where he applied for asylum on 1 December 1997. His
application having been turned down, he maintains that his forcible
repatriation to the DRC would constitute a violation by Switzerland
of article 3 of the Convention against Torture. He is represented
1.2 In accordance
with article 22, paragraph 3, of the Convention, the Committee transmitted
the communication to the State party on 23 September 1998. At the
same time, the State party was requested, pursuant to rule 108, paragraph
9, of the Committee's rules of procedure, not to expel the author
to the DRC while his communication was under consideration by the
Committee. In a submission dated 23 November 1998, the State party
informed the Committee that steps had been taken to ensure that the
author was not returned to the DRC while his case was pending before
as submitted by the author
2.1 The author
claims he worked in Kinshasa between 1992 and 1997 as an employee
of a company called Hyochade, belonging to Mr. Kongolo Mobutu, the
son of former President Mobutu. According to the author, this company
was a cover for plundering the wealth of the country in various ways,
such as extorting money from foreign businessmen or organizing demonstrations
that required State authorization. It paid no taxes and had no administrative
obligations. Acting on behalf of the regime, it also carried out propaganda
activities and kept track of members of the political opposition in
order to keep them under some kind of control.
2.2 The author
explains that his work consisted of acting as an intermediary in certain
business transactions, such as obtaining permits for foreign businessmen.
But his responsibilities also included collecting information on members
of the opposition within a particular geographical area and denouncing
any subversive activities. One day, he denounced a friend's father,
who was subsequently tortured to death. The author states that he
reported to his supervisors at least every two months and was generously
paid. In addition to his salary, he received a bonus when he denounced
someone and he enjoyed a whole range of other privileges.
this period, he was warned by both friends and enemies that his activities
might one day be dangerous for him. His parents, particularly his
father, tried to persuade him to leave the job and return to university.
The author eventually left Hyochade in January 1997 and stayed with
his parents while waiting for an opportunity to go back to university.
2.4 On 17
May 1997, the rebellion led by Mr. Kabila reached Kinshasa. On the
night of 18 June 1997, soldiers burst into the author's parents' house
to arrest him. As he was not there, the soldiers arrested his father.
When he learned what had happened to his family, the author decided
to go into hiding in Bas-Zaire, where he stayed with a friend until
mid-September. He then caught typhoid fever and decided to return
to Kinshasa, where he stayed with his sister.
2.5 On 6
October 1997, his father was released on condition that he report
to the military post every two weeks until the author returned. On
the day he was released, the father came to visit the author, but
was followed by three plain-clothes officers with an arrest warrant
and a photograph of him. The author was arrested and taken to the
Kokolo military camp. His father was allowed to accompany him only
as far as the entrance.
2.6 The author
states that he was kept in isolation in a cell for three days without
food. He was then taken to the office of the camp commander, where
he was informed that he was accused of treason, extortion and complicity
in murder. He denied the charges, but was ordered by the commander
to be taken away to another cell, where he received a beating, including
blows to his genitals, from several soldiers. He was in hospital until
25 November 1997, when a doctor, who had been bribed by his sister,
helped him to escape. He decided to leave the country immediately.
2.7 On arriving
in Switzerland, on 1 December 1997, he applied for asylum. His application
was turned down by the Federal Office for Refugees on 25 March 1998.
He then submitted an appeal against this decision, but it was declared
inadmissible on 18 June 1998 by the Swiss Appeal Commission on Asylum
Matters, on the grounds that the author had not paid the full amount
needed to cover the cost of the proceedings until four days after
of the complaint
3.1 The author
states that, if he were returned to the DRC, he would be tortured
and summarily executed. Given the fact that he carried out his professional
activities in his own neighbourhood, that he had sent many people
from that neighbourhood to be tortured if not to their death, and
that he enjoyed many privileges, there are grounds for believing that
he has certainly not been forgotten and that, if he returned to Kinshasa,
the fate awaiting him would be commensurate with his actions. The
numerous documents he has produced during the asylum proceedings also
provide substantial reasons for believing that this fear is well founded.
by the State party
4.1 By letter
of 23 November 1998, the State party informed the Committee that it
did not contest the admissibility of the communication. Nevertheless,
in its observations dated 11 March 1999, it requests the Committee
to make sure that the same matter is not being examined under another
procedure of international investigation or settlement.
regard to the merits of the communication, the State party makes it
clear first of all that, in accordance with previous decisions of
the Committee, (1) it in no way opposes the absolute nature of article
3. It adds, however, that while the author's fears must be analysed
in the light of the general situation prevailing in the country, it
must also be determined that any risk is personal, real and foreseeable.
4.3 The State
party points out that the author made many contradictory statements
during questioning on vital points of his story. For example, the
author did not mention the events of 18 June 1997 during his first
hearing and even specified that he had had no problem with the new
Congolese authorities prior to 6 October 1997. Moreover, the circumstances
surrounding his departure from Kinshasa for Bas-Zaire were brought
up only during the second hearing. He also contradicted himself with
regard to the person who had helped him leave the hospital; the first
time he had said it was a nurse and the second time that it was a
doctor. Also, while at the second hearing he was able initially to
give the doctor's name and approximate address, a little later he
could no longer remember. The State party notes that the author has
provided no explanation for these contradictions in his communication.
the State party questions the plausibility of certain facts introduced
by the author only towards the end of the proceedings, for no apparent
reason other than to strengthen his argument for asylum. In particular,
he suggested that working for Hyochade implied that he had to be a
member of the People's Revolution Movement (MPR - the single party
during President Mobutu's regime). As to reasons for his arrest in
October 1997, it was only at the end of the proceedings that he mentioned
treason, complicity in murder and embezzlement.
4.5 In the
view of the State party, some parts of the author's story are completely
implausible, such as the claim that, during his escape, he was wheeled
out of the hospital on a bed hidden under a sheet. There are also
serious doubts about his escape from the country, since he came to
Europe by plane, the most tightly controlled means of transport, although
he claims that he was wanted on serious charges.
4.6 The State
party considers it surprising that the author produced no medical
certificate, even though he claimed to be suffering from the after-effects
of the acts of torture to which he had been subjected and that these
acts were recent enough for a doctor to determine that they had taken
place. No documentary evidence was produced to explain these contradictions
in the author's account and hence he cannot use the argument put forward
in previous cases before the Committee, whereby "the effects
of a post-traumatic stress disorder, as in the case of many torture
victims" may account for "the inconsistencies that appear
in some statements". (2)
acknowledging that a person does not have to have been tortured in
the past to have a justifiable fear of being tortured in the future,
the State party points out that there is no further evidence in the
author's case to prove this risk exists. Referring to the Committee's
decision in the case of Seid Mortesa Aemei v. Switzerland,
(3) it thus notes that, even if the author's position in Hyochade
really did involve being a member of the MPR, his political activities
were not important enough to warrant his persecution by the current
4.8 The State
party expresses serious doubts about the author's professional activities
and about the very existence of the Hyochade company, since the author
has never been able to produce any documents relating to his work
for that company, even though he was able to obtain a number of other
documents and his family on the spot could have helped him find the
papers he wanted. In addition, the State party believes that for the
author to be effective as an informant, he would have needed the help
of other informants. Yet the author has always maintained that he
had been working alone, which appears inconsistent to the State party.
the lack of evidence, the State party's comments in the previous paragraph
also apply to the author's escape from hospital, insofar as his sister
or the person who helped him could have provided a statement.
as far as the general situation in the DRC is concerned, the State
party accepts the Committee's observations in the case of X, Y
and Z v. Sweden (4) and recalls that the Office of the United
Nations High Commissioner for Refugees (UNHCR) has not as yet made
any recommendations to the effect that asylum-seekers whose applications
are unsuccessful should not be sent back to that country.
observations by the author
5.1 In a
letter dated 28 April 1999, the author comments on the State party's
observations on the merits of the communication.
regard to the contradictions found by the State party in the author's
accounts, the author refers to the appeal submitted to the Swiss Appeal
Commission on Asylum Matters on 30 April 1998, in which all the necessary
explanations are given. It is made clear there that, while it had
not indeed been recorded during the first hearing that he had had
problems with the authorities on 18 June 1997, the author had in fact
meant to say that he had not been physically ill-treated by the authorities
prior to 6 October 1997. On the same point, the author draws attention
to the fact that the problems encountered on 18 June 1997 emerge clearly
from the report on the second hearing, which mentions his stay in
Bas-Zaire from that date. With regard to the exact status of the person
who helped him escape from the hospital, it is pointed out that the
author, a novice in that respect, never really knew whether the person
was a nurse or a doctor, a distinction which is even more difficult
to draw in the DRC. As far as that person's name is concerned, it
is natural that the author should have had difficulty remembering
it, since, for the sake of security, an accomplice will rarely reveal
his name. The author mentioned one name at the beginning of the hearing,
but then gave up.
regard to the other arguments put forward by the State party, the
author refers to the additional statement dated 4 June 1998, which
was submitted to the Swiss Appeal Commission on Asylum Matters. In
it, the author explains why he chose to travel to Europe by plane
and how he organized his trip so that he would not be spotted. He
had actually obtained a return plane ticket that belonged to a Zairian
citizen residing in Italy. He also states that he no longer has any
contact with his family, which means that he is unable to obtain certain
documents. Lastly, with regard to his activities on behalf of the
regime and his political activities, the author observes that he was
asked very few questions on the subject and so did not have a chance
to give all the necessary explanations in reply to the doubts of the
authorities responsible for the asylum proceedings.
5.4 The author
believes that the State party has not honoured its international commitments
in its handling of his application for asylum, particularly in its
excessive reliance on a formality (the payment of the 250 Swiss franc
deposit for appeal costs four days after the deadline) to declare
his appeal to the Swiss Appeal Commission on Asylum Matters dated
30 April 1998 inadmissible.
5.5 The author
derives some satisfaction from the State party's observations on his
communication, since for the first time the merits of his reasons
and arguments have been examined in depth. He regrets, however, that
this examination was carried out not by the actual judicial authority
normally competent in asylum matters, but by the Government, which,
by virtue of the proceedings, is a party in the case and consequently
does not have the independence and impartiality of the judiciary.
5.6 The author
believes that, by signing the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, the State party
undertook not to expel, return or extradite a person to another State
where there are substantial grounds for believing that he would be
in danger of being subjected to torture. To determine the risk involved,
the State party must take account of all relevant considerations,
including the existence of systematic violations of human rights in
the country concerned. The author believes that these relevant considerations
have not been examined, since the Swiss authorities dealing with the
matter did not at any time consider the merits of his application
regard to the lack of a medical certificate, the author recalls that
he was examined upon his arrival in Switzerland, but, being unfamiliar
with the details of the procedure, did not think of asking for an
examination of the marks left by the ill-treatment to which he had
5.8 In respect of his political activities while working for Hyochade,
although his actions were not political in the strict sense of the
word, they were serious enough for him to be remembered in Kinshasa.
As to the lack of documentation to back up his statements about his
work, he adds that there would be no documents relating to his activities
at Hyochade at his father's house because of the nature of the company's
the author believes he has provided enough plausible evidence to show
that his story is true, believing that any made-up story would never
have held together.
and proceedings before the Committee
considering any of the allegations in a communication, the Committee
against Torture must decide whether or not the communication is admissible
under article 22 of the Convention. It has ascertained, as in accordance
with article 22, paragraph 5 (a), of the Convention it is required
to do, that the same matter has not been and is not being examined
under another procedure of international investigation or settlement.
It also notes that all domestic remedies have been exhausted and that
the State party has not contested the admissibility of the communication.
It therefore considers that the communication is admissible. As both
the State party and the author have provided observations on the merits
of the communication, the Committee proceeds with the consideration
of those merits.
6.2 The issue
before the Committee is whether the forced return of the author to
the Democratic Republic of the Congo would violate the obligation
of the State party 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.
6.3 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 subjected to torture upon return to the Democratic Republic
of the Congo. In reaching this decision, 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 or she would return. 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 particular person would be in danger of being subjected to torture
upon his or her return to the country. There must be other grounds
indicating that the individual concerned would be personally at risk.
Similarly, the absence of a consistent pattern of gross violations
of human rights does not mean that a person might not be subjected
to torture in his or her specific circumstances.
6.4 The Committee
recalls its general comment on the implementation of article 3 which
"Bearing in mind that the State party and the Committee are
obliged to assess whether there are substantial grounds for believing
that the author would be in danger of being subjected to torture
were he/she to be expelled, returned or extradited, the risk of
torture must be assessed on grounds that go beyond mere theory or
suspicion. However, the risk does not have to meet the test of being
highly probable" (A/53/44, annex IX, para. 6).
6.5 In the
present case, the Committee notes that the State party draws attention
to a number of inconsistencies and contradictions in the author's
account, casting doubt on the truthfulness of his allegations. It
also notes the explanations provided by counsel in that respect.
6.6 The Committee
finds the arguments advanced by the author in support of his allegations
of being tortured before fleeing the Democratic Republic of the Congo
to be inconsistent and unconvincing.
6.7 The Committee
also finds that it has not been given enough evidence by the author
to conclude that the latter would run a personal, real and foreseeable
risk of being tortured if returned to his country of origin.
6.8 The Committee
against Torture, acting under article 22, paragraph 7, of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, concludes that the decision of the State party to return
the author to the Democratic Republic of the Congo does not constitute
a breach of article 3 of the Convention.
English, French, Russian and Spanish, the French text being the original
1. Gorki Ernesto Tapia Paez v. Sweden, Communication No. 39/1996,
v. Switzerland, Communication No. 38/1985.
Mortesa Aemei v. Switzerland, Communication No. 34/1995.
Y and Z v. Sweden, Communication No. 61/1996.