against Torture, established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 17 November 1994,
Adopts the following:
Decision on admissibility
1. The author of the communication is Y, a Zairian citizen, currently
residing in Switzerland. He claims to be a victim of a violation by the
Swiss authorities of article 3 of the Convention against Torture. He is
represented by counsel.
The Facts as Submitted by the Author:
2.1 The author, who was born in 1963, lived in the north of Zaire, until
1983. His father was arrested in 1968 for political reasons and kept in
detention for five years, until his death in 1973. In 1983, the author moved
for professional reasons to another town, where he lived with an older
cousin. After President Mobutu, on 24 April 1990, had announced the end of
the one-party system, the author joined the Union pour la démocratie et le
progrès social (UDPS), the opposition party. On 30 April 1990, the UDPS
organized a peaceful demonstration in Kinshasa, which was violently
dispersed by the police. Many more clashes between members of the opposition
movement and government forces followed, and in June 1990, the author was
arrested together with other demonstrators, after having participated in a
demonstration against the Government.
2.2 The author submits that he was kept in detention in a prison camp. He
was allegedly ill treated, beaten and threatened. After a month, the author
was transferred to the military offices in town. He then managed to escape
with the help of a military officer, who was of the same ethnic background
as the author. After having been in hiding in a village, with friends of his
cousin, he boarded an Air Zaire plane for Rome, with a false passport which
had been furnished by his cousin. After arrival in Italy, he sent the
passport back to his cousin, as agreed. Some Africans in Rome helped him
cross the border with Switzerland, where he arrived in late August 1990.
2.3 Upon arrival in Switzerland, the author requested recognition as a
refugee. In July 1992, the Office fédéral des réfugiés rejected his request,
because the demonstration of June 1990, during which the author allegedly
was arrested, had never been reported; this gave rise to doubts about the
authenticity of the author's account. The author's appeal was rejected by
the Commission suisse de recours en matière d'asile et de renvoi in May
1994. The Commission considered that the author's story had little
credibility, given inter alia the fact that he had not been able to describe
in detail his place of detention and that he had not furnished any
documentary evidence in support of his personal claim. The author was
ordered to leave Switzerland before or on 30 August 1994, failing which he
would be returned to Zaire.
2.4 In January 1994, the author was joined by his daughter, who was born in
Zaire in 1987. In Switzerland, the author began a relationship with Ms. Y; a
daughter was born in June 1994. Because of the birth, the expulsion was
deferred to the end of September 1994.
3.1 The author argues that the political situation in Zaire has not improved
and that President Mobutu continues to terrorize the country. His family
members still in Zaire have informed him that the human rights situation in
the country is bad and that there is practically no political opposition
left. The author submits that he fears for his security, and points out that
at least one asylum seeker, who had been returned by Belgium to Zaire in
April 1990, had been arrested upon return and beaten, and subsequently
disappeared. The author also states that his cousin has told him not to
return to Zaire, because of the risks involved.
3.2 The author claims that his forced return to Zaire would be in violation
of article 3 of the Convention. In this context, he refers to the
Committee's Views in communication No. 13/1993, Mutombo v. Switzerland,
where the Committee concluded that a consistent pattern of gross, flagrant
or mass violations of human rights existed in Zaire. The author argues that
his family background as well as his personal experience as a political
opponent in Zaire, make it predictable that he will be arrested upon arrival
in Zaire, and consequently be subjected to maltreatment and torture. In this
context, he submits that an article recently published in Zaire attributed
certain political opinions to him.
3.3 Pending the Committee's decision on the merits of his communication, the
author requests the Committee to request Switzerland, under rule 108,
paragraph 9, of the Committee's rules of procedure, not to implement the
expulsion order against him.
3.4 It is stated that the same matter has not been submitted to any other
procedure of international investigation or settlement.
Issues and Proceedings Before the Committee:
4.1 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.
4.2 The Committee has examined the claims submitted by the author and
observes that his account lacks the minimum substantiation that would render
the communication compatible with article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
5. The Committee against Torture therefore decides:
(a) that the communication is inadmissible;
(b) that this decision shall be communicated to the author and his counsel
and, for information, to the State party.