|
The Committee
against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 27 April 1994,
Having concluded its consideration of communication No. 13/1993, submitted
to the Committee against Torture on behalf of Mr. Balabou Mutombo under
article 22 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, and by the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication (dated 18 October 1993) is Balabou
Mutombo, a Zairian citizen, born on 24 November 1961, at present living in
Switzerland and seeking recognition as a refugee. He claims to be a victim
of a violation by Switzerland of article 3 of the Convention against
Torture. He is represented by counsel.
Facts as Submitted by the Author
2.1 The author states that he has been a member of the Zairian Armed Forces
since 1982. In 1988, he clandestinely became a member of the political
movement Union pour la démocratie et le progrès social (UDPS), as he felt
discriminated against because of his ethnic background (Luba). His father
had been a member of the movement since its launch in 1982 and was allegedly
forced to retire as a magistrate at the Kinshasa Magistrate's Court
(Tribunal de Grande Instance) because of that affiliation. The author
participated in several demonstrations and attended illegal meetings.
2.2 On 20 June 1989, the author was arrested by three members of the
Division Spéciale Présidentielle, when he was about to deliver a letter from
his father to Mr. Etienne Tshisekedi, a founding member and leader of UDPS.
He was detained in the military camp of Tshatsi, where he was locked up in a
cell of one square metre. During the four days that followed, he was
tortured by his interrogators, whom he mentions by name. He was subjected to
electric shocks, beaten with a rifle, and his testicles were bruised until
he lost consciousness. On 24 June 1989, he was brought before a military
tribunal, found guilty of conspiracy against the State and sentenced to 15
years' imprisonment. He was transferred to the military prison of Ndolo,
where he was detained for seven months. Although the author had lost part of
his eyesight and suffered a head injury caused by the torture, he was not
given any medical treatment. On 20 January 1990, he was released under the
condition that he present himself twice a week at the Auditorat militaire of
Mantete. In February 1990, he sought medical treatment for his eye injury at
the General Hospital Mama Yemo.
2.3 Subsequently, the author's father and brothers suggested that he leave
Kinshasa, to avoid the police finding other members of the movement by
following him. They also feared for the author's security. On 30 March 1990,
the author left Zaire, leaving behind his family, including his two
children, who live with his father; after 15 days he arrived at Luanda,
where he stayed with friends for three months. A friend provided him with a
visa for Italy, where he arrived on 29 July 1990, using the passport of his
friend. On 7 August 1990, he illegally crossed the border to enter
Switzerland; on 8 August 1990, he applied for recognition in Switzerland as
a refugee. In the course of that month he learned that his father had been
detained after his departure.
2.4 The author was heard by the Cantonal Office for Asylum Seekers at
Lausanne on 10 October 1990. He submitted a medical report written by a
medical doctor in Switzerland indicating that the scars on his body
corresponded with the alleged torture. A report by an ophthalmologist
indicated that the author had an eye injury, caused by a trauma, which,
according to the author, was caused by a blow to his head during the
interrogation in June 1989. On 31 January 1992, the Federal Refugee Office
(Office fédéral des réfugiés) rejected his application and ordered his
removal from Switzerland. It considered that, even if the author had been
detained in the military prison of Ndolo, it was unlikely that he had been
imprisoned for political reasons, since the International Committee of the
Red Cross (ICRC), which had visited the prison in November 1989, had stated
that it did not visit him, since he apparently did not belong to the
category of prisoners which fell under the mandate of ICRC. The Refugee
Office further doubted the authenticity of the provisional release order,
which the author had submitted as evidence of his detention. With regard to
the author's return to Zaire, the Refugee Office considered that there were
no indications that he would be exposed to punishment or treatment
prohibited by article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms.
2.5 On 6 March 1992, the author appealed the decision. On 10 August 1992,
the decision to expel him was stayed, but on 2 June 1993, the Commission of
Appeal in Refugee Matters (Commission suisse de recours en matière d'asile)
dismissed the author's appeal. On 24 June 1993, the author was informed that
he had to leave Switzerland before 15 September 1993, failing which he would
be subject to expulsion. The author's request for a review of the decision,
on the ground that the authorities had not sufficiently taken into account
essential documents, such as a report of Amnesty International and medical
reports, was dismissed on 13 September 1993. On 17 September 1993, the
author received permission to stay in Switzerland until 17 October 1993.
Complaint
3.1 The author claims that a real risk exists that he would be subjected to
torture or that his security would be endangered if he were to be returned
to his country. It is submitted that evidence exists that there is a
consistent pattern of gross and massive violations of human rights in Zaire,
which, according to article 3, paragraph 2, of the Convention against
Torture, are circumstances which a State party should take into account when
deciding on expulsion. The author contends that on this basis alone the
Swiss authorities should refrain from expelling him.
3.2 In a letter to counsel, dated 3 November 1993, Amnesty International
supports the author's arguments that he would be exposed to a risk of
torture upon return to Zaire. It considers the author's story credible and
emphasizes that the general situation in Zaire is one of violence and
repression. Amnesty International submits in particular that hundreds of
soldiers suspected of sympathizing with the opposition to the rule of
President Mobuto have been arrested and many of them are detained in secret
places. In Amnesty International's opinion, members of the opposition are
subject to repression and the simple fact of seeking recognition as a
refugee is seen as a subversive act.
3.3 Since the author could be expelled at any moment, he asked the Committee
to request Switzerland to take interim measures of protection and not to
expel him while his communication is under consideration by the Committee.
Issues and Proceedings Before the Committee
4. During its eleventh session, on 18 November 1993, the Committee decided
to solicit from the State party clarifications or observations as to the
admissibility of the communication, and, in the specific circumstances of
the case, to request the State party, under rule 108, paragraph 9, not to
expel the author while his communication was under consideration by the
Committee. The State party was also invited to submit explanations or
statements as to the merits of the communication, in case it had no
objections to its admissibility.
5. On 18 February 1994, the State party informed the Committee that it would
comply with the Committee's request not to expel the author and that it
would not contest the admissibility of the communication, since the author
had exhausted all available domestic remedies.
State Party's Observations on the Merits of the Communication
6.1 By submission of 7 March 1994, the State party recalls that the Federal
Refugee Office has, on 31 January 1992, rejected the author's application to
be recognized as a refugee, on the basis that there were several
contradictions in his testimony, that the principal document, the
provisional release order, had no legal value, that the medical certificates
were not persuasive and that in general the author's allegations were not
reliable. The Federal Refugee Office was of the opinion that the situation
in Zaire was not one of systematic violence.
6.2 As to the author's specific claim that his expulsion would be in
violation of article 3 of the Convention, the State party notes that the
author has not raised this objection before any of the national authorities,
but has only invoked article 3 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms. The State party refers to the
author's argument that the existence in a State of a consistent pattern of
human rights violations would by itself be sufficient reason not to return
anyone to that State. The State party considers the issue raised by the
author of great importance for the interpretation and application of article
3 of the Convention; it points out that, if the general situation in a
country alone would suffice to conclude that substantial grounds exist for
believing that someone, if returned, would be subjected to torture, the
requirement of article 3, paragraph 1, that the belief concerns the
individual personally, would no longer have a separate meaning. The State
party concludes therefore that the interpretation as suggested by the author
is incompatible with article 3 and with a systematic and teleological
interpretation thereof. It submits that article 3, paragraph 1, stipulates
the conditions in which a State party is precluded from expelling an
individual from its territory, whereas paragraph 2 prescribes how to
appreciate the evidence when determining the existence of such conditions.
6.3 The State party submits that, even if a consistent pattern of gross,
flagrant or mass violations of human rights exists in a country, this should
only be taken as an indication when examining all the circumstances to
determine whether the person to be returned would be in concrete danger of
being tortured. The existence of the "substantial grounds" of paragraph 1
has to be determined in the light of all the circumstances in a particular
case. The State party argues that only in exceptional circumstances would a
reference to a situation of gross violations of human rights suffice to
prove the existence of substantial grounds to believe that a person would be
in danger of being subjected to torture, for instance if the violations are
directed against a particular group of persons in a confined territory and
the individual to be returned belongs to that group. The State party submits
that this is not the case with the author of the present communication.
6.4 In support of its interpretation of article 3 of the Convention, the
State party refers to the jurisprudence of the European Commission of Human
Rights, establishing that a decision to expel an asylum seeker may give rise
to an issue under article 3 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms where substantial grounds have been
shown for believing that he faces a real risk of being subjected to torture.
In the Commission's opinion, a reference to the general situation in a
country is not sufficient to preclude the return of an individual, as it
must be shown that the individual himself is at risk. The State party
further refers to the decision of the European Court of Human Rights in
Vilvarajah et al. v. The United Kingdom, where it was held that a mere
possibility of ill-treatment because of the general situation in a country
was not in itself sufficient to give rise to a violation of article 3. The
State party argues that article 3 of the Convention against Torture does not
provide a wider protection than article 3 of the European Convention. It
adds that the author himself is apparently of the same opinion, since he did
not deem it necessary to invoke article 3 of the Convention against Torture
while exhausting his domestic remedies, but only invoked article 3 of the
European Convention.
6.5 The State party submits that the author of the present communication
does not have substantial grounds to believe that he himself would be in
danger of being subjected to torture in case of his return to Zaire. Even
taking into account the general situation in Zaire, the State party claims
that the evidence adduced by the author does not support his allegations. In
this context, the State party submits that it has, on several occasions,
contacted its embassy at Kinshasa before taking its decision not to grant
the author asylum. The embassy contacted an informant from the human rights
movement in Zaire, who advised the embassy that the author's story was
highly unlikely. He affirmed that the provisional release order was a
document without any legal value and that all released prisoners were
provided with a "fiche de libération", which the author did not possess.
Moreover, the signature on the order produced by the author does not
correspond with the signature of the director of the military prison in
which the author allegedly was detained. The State party further submits
that the author's name does not figure in the Ndolo prison registers for
1989 and 1990 and that the author's father has declared that his son has
never been detained in a military prison. It is also submitted that the
drawing made by the author of the prison lacks important elements such as
the desk of the prison's director and the division of the prison in two
parts, one for ordinary soldiers and one for officers.
6.6 As regards the author's father, it was found that he had retired, not
for political reasons, but pursuant to the applicable rules for civil
servants. The leaders of the UDPS subsection to which the author's father
geographically belongs have stated that he was not a UDPS member.
6.7 Moreover, the State party argues that, even if the author's story is
true, it still does not indicate that a real risk exists that he will be
subjected to torture upon his return. The State party argues that the fact
that the author was provisionally released after seven months, while having
been sentenced to 15 years' imprisonment, shows that such a risk is minimal,
even if he was subjected to torture after his arrest in 1989. The State
party recalls that the author has admitted having received a new military
uniform upon his release. The State party further refers to the author's
communication to the Committee, and concludes that he left Zaire mainly
because he did not want to endanger his family and friends, not because he
was personally at risk.
6.8 As regards the general situation in Zaire, the State party acknowledges
that the country suffers from internal political unrest and from incidental
outbursts of violence. However, it submits that this cannot lead to the
conclusion that a personal risk exists for the author that he will be
tortured after his return. In this context, the State party refers to a
recent letter from the Office of the United Nations High Commissioner for
Refugees, in which it expressed concern for the situation in Zaire and
recommended great prudence in the return of persons to Zaire, but did not
recommend a suspension of expulsions to Zaire altogether.
7.1 In his comments (dated 20 April 1994) on the State party's submission,
counsel argues that, even if Mr. Mutombo did not invoke the Convention
against Torture but only the European Convention for the Protection of Human
Rights and Fundamental Freedoms before the national authorities, the Swiss
authorities were, according to the Swiss legal system, nevertheless under an
obligation to apply the Convention against Torture. Counsel further contests
the State party's argument that article 3 of the Convention against Torture
does not provide a wider protection than article 3 of the European
Convention. He argues that the articles of the Convention against Torture
must be interpreted in such a way as to give the most effective protection
against torture. In this context, counsel notes that article 3 of the
European Convention prohibits torture but does not directly deal with the
issue of expulsion or "refoulement". Its application to situations of
expulsion has been developed only in the jurisprudence of the European
Commission and the European Court on Human Rights, which have been reluctant
to interpret it broadly. Since article 3 of the Convention against Torture
contains an explicit protection against forced return to a country where an
individual would be at risk of being subjected to torture, counsel argues
that this necessarily has to lead to a different, wider interpretation.
7.2 Counsel further argues that the criteria to establish the existence of a
risk that an individual, if returned, would be subjected to torture are not
the same under the two conventions. The jurisprudence on the basis of
article 3 of the European Convention has established that a risk must be
concrete and serious to engage the applicability of article 3. Under article
3 of the Convention against Torture the existence of substantial grounds for
believing that such risk exists is sufficient to prohibit the individual's
return; among these grounds is the existence in the country concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.
Counsel contests the State party's interpretation of the second paragraph of
article 3, and argues that the existence of systematic human rights
violations in a country sufficiently shows the existence of substantial
grounds for believing that a person would be in danger of being subjected to
torture, on the basis of which the person's return to that country is
prohibited.
7.3 Counsel further argues that article 3 of the Convention against Torture
lays the burden of proof on the State party, thereby reinforcing the
protection of the individual. In this connection, counsel notes that it is
difficult for an individual to prove the existence of the danger of being
subjected to torture. As regards the State party's contention that Mr.
Mutombo's story is not credible, and its investigation to adduce evidence to
that effect, counsel notes that the secretive nature of the investigation
and the use of an anonymous informant makes it impossible for him to verify
the credibility and the objectivity of the information furnished. Counsel
furthermore doubts that the informant would have had access to the register
of the Ndolo prison, which normally would not be open to anyone from the
outside. He therefore requests that the State party disclose the name of the
informant and the name of the human rights movement of which he is a member,
failing which the information provided by the State party should not be
taken into account by the Committee. To substantiate the credibility of the
author's story, counsel refers to the initial communication and the position
taken by Amnesty International in support of it.
7.4 Counsel further argues that the fact that the author was conditionally
released from detention does not diminish the risk of being subjected to
torture upon return to the country. In this connection, counsel points out
that the situation in Zaire has considerably deteriorated since 1990 and
that it is the present danger facing the author upon his return to Zaire
which is at issue. To support his argument, counsel refers to several
reports written by non-governmental organizations and to the report
concerning Zaire prepared by the Secretary-General for the United Nations
Commission on Human Rights, [FNa] which indicate that torture and
ill-treatment of detainees are common practice in Zaire and are perpetrated
with impunity. Counsel argues that the State party's reference to the
failure of the United Nations High Commissioner for Refugees to recommend
the suspension of all expulsions to Zaire is irrelevant, because this was
related to another case and had nothing to do with the author's situation.
Counsel further states that the language used in the letter from the High
Commissioner is strongly dissuasive of all expulsions to Zaire.
---------------------------------------------------------------------------------------------------------------------
[FNa] E/CN.4/1994/49.
---------------------------------------------------------------------------------------------------------------------
7.5 Finally, counsel refers to the medical report submitted by the author
and written by a Swiss medical specialist, indicating that the author's
injuries correspond with the alleged torture. He notes that the State party
has rejected this report as not persuasive without even conducting a
re-examination.
Decision on Admissibility and Examination of the Merits
8. Before considering any claims contained in a communication, the Committee
against Torture 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 25, 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 confirmed that the author has exhausted all
available domestic remedies. The Committee therefore finds that no obstacles
to the admissibility of the present communication exist and proceeds with
the consideration of the merits of the communication.
9.1 The Committee observes that it is not called upon to determine whether
the author's rights under the Convention have been violated by Zaire, which
is not a State party to the Convention. The issue before the Committee is
whether the expulsion or return of the author of the communication to Zaire
would violate the obligation of Switzerland 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.
9.2 The Committee is aware of the concerns of the State party that the
implementation of article 3 of the Convention might be abused by asylum
seekers. The Committee considers that, even if there are doubts about the
facts adduced by the author, it must ensure that his security is not
endangered.
9.3 The relevant provisions are contained in article 3:
"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 to torture.
"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 human rights."
The Committee must decide, pursuant to paragraph 1 of article 3, whether
there are substantial grounds for believing that Mr. Mutombo would be in
danger of being subjected to torture. In reaching this conclusion, the
Committee must take into account all relevant considerations, pursuant to
paragraph 2 of article 3, 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 that indicate 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 cannot be
considered to be in danger of being subjected to torture in his specific
circumstances.
9.4 The Committee considers that in the present case substantial grounds
exist for believing that the author would be in danger of being subjected to
torture. The Committee has noted the author's ethnic background, alleged
political affiliation and detention history as well as the fact, which has
not been disputed by the State party, that he appears to have deserted from
the army and to have left Zaire in a clandestine manner and, when
formulating an application for asylum, to have adduced arguments which may
be considered defamatory towards Zaire. The Committee considers that, in the
present circumstances, his return to Zaire would have the foreseeable and
necessary consequence of exposing him to a real risk of being detained and
tortured. Moreover, the belief that "substantial grounds" exist within the
meaning of article 3, paragraph 1, is strengthened by "the existence in the
State concerned of a consistent pattern of gross, flagrant or mass
violations of human rights", within the meaning of article 3, paragraph 2.
9.5 The Committee is aware of the serious human rights situation in Zaire,
as reported, inter alia, to the United Nations Commission on Human Rights by
the Secretary-General [FNa] and by the Commission's Special Rapporteur on
extrajudicial, summary or arbitrary executions, [FN b] the Special
Rapporteur on the question of torture [FNc] and the Working Group on
Enforced or Involuntary Disappearances. [FNd] The Committee notes the
serious concern expressed by the Commission in this regard, in particular in
respect of the persistent practices of arbitrary arrest and detention,
torture and inhuman treatment in detention centres, disappearances and
summary and arbitrary executions, which prompted the Commission to decide,
in March 1994, to appoint a special rapporteur specifically to examine and
to report on the human rights situation in Zaire. The Committee cannot but
conclude that a consistent pattern of gross, flagrant or mass violations
does exist in Zaire and that the situation may be deteriorating.
---------------------------------------------------------------------------------------------------------------------
[FNa] E/CN.4/1994/49.
[FNb] E/CN.4/1994/7, paras. 653-662.
[FNc] E/CN.4/1994/31, paras. 657-664.
[FNd] E/CN.4/1994/26, paras. 509-513.
---------------------------------------------------------------------------------------------------------------------
9.6 Moreover, the Committee considers that, in view of the fact that Zaire
is not a party to the Convention, the author would be in danger, in the
event of expulsion to Zaire, not only of being subjected to torture but of
no longer having the legal possibility of applying to the Committee for
protection.
9.7 The Committee therefore concludes that the expulsion or return of the
author to Zaire in the prevailing circumstances would constitute a violation
of article 3 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
10. In the light of the above, the Committee is of the view that, in the
prevailing circumstances, the State party has an obligation to refrain from
expelling Balabou Mutombo to Zaire, or to any other country where he runs a
real risk of being expelled or returned to Zaire or of being subjected to
torture.
|
|