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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. 41/1996, submitted
to the Committee against Torture on behalf of Mrs. Pauline Muzonzo Paku
Kisoki under article 22 of the Convention,
Having taken into account all information made available to it by the author
of the communication, her counsel and the State party,
Adopts the following:
Views under article 22, paragraph 7, of the Convention
1. The author of the communication is Pauline Muzonzo Paku Kisoki, a Zairian
citizen currently residing in Sweden, where she is seeking refugee status.
She claims that her forced return to Zaire would constitute a violation by
Sweden of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. She is represented by counsel.
[FNa]
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[FNa] A previous communication on behalf of the same author, communication
No. 30/1995, was declared inadmissible by the Committee on 20 November 1995,
for non-exhaustion of domestic remedies./
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The Facts as Submitted
2.1 The author states that on 18 October 1990, members of the government
party MPR visited her restaurant in Kisanto, not far from Kinshasa,
indicating that they wished to hold a party rally there the following day.
The author refused this, since she was an activist of the opposition party
UDPS and her husband worked as personal secretary to Mr. Bosasi Bolia, one
of the leaders of the Union pour la Démocratie et le Progrès Social (UDPS).
2.2 On 20 October 1990, the author and her husband were arrested by security
forces. The author was raped in her home in front of her children. She was
then taken to a small detention centre on the way to Kinshasa where she was
brutally beaten. The following day she was taken to Makal prison in
Kinshasa. The author describes the inhuman and degrading circumstances of
detention in prison. She was not allowed to receive any visits and shared a
cell of 3 by 6 metres with seven other inmates. There were no proper
sanitary provisions and they had to urinate on the floor. Every morning
guards came into the cell and forced the women to dance, beat them and
sometimes raped them. The author states that she was raped more than 10
times during her time in prison. She further submits that she was regularly
beaten, sometimes with whips made of tyres on which metal thread was stuck,
she was burnt with cigarettes on the inside of her thighs and struck with
batons.
2.3 The author was detained for one year without trial. On 20 October 1991,
with the assistance of one of the supervisors of the prison who had been
bribed by the author's sister, the author was able to escape. She then
travelled to Sweden, via Belgium, on a passport of a woman who resembled
her. Later, she sent the passport back to the woman.
2.4 The author arrived in Sweden on 14 November 1991 and immediately
requested asylum. On 31 January 1994, the Swedish Board of Immigration
refused her request, noting that the political situation in Zaire had
improved and considering that it was not likely that Ms. Muzonzo would be
subjected to persecution or severe harassment because of her past activities
for UDPS. The Board further questioned the circumstances surrounding her
release from prison and her leaving Zaire.
2.5 On 13 February 1995, The Aliens Appeal Board confirmed the decision of
the Swedish Board of Immigration and concluded that in the present
circumstances in Zaire, Ms. Muzonzo did not risk persecution by the
authorities. The author then submitted a "new application" to the Appeal
Board, referring to the report of the Special Rapporteur of the Commission
on Human Rights on the situation of human rights in Zaire of 23 December
1994. [FNb] On 16 March 1995 the Board rejected her application, considering
that the circumstances invoked by the author could not be seen as new
evidence.
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[FN] E/CN.4/1994/67
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2.6 On 12 December 1995, the author submitted yet another new application to
the Swedish Aliens Appeal Board, on the basis of new forensic medical
evidence, prepared by the Centre for Torture and Trauma Survivors in
Stockholm. On 7 February 1996, the Aliens Appeal Board rejected the author's
application, judging that the information now submitted could easily have
been submitted earlier, thereby decreasing the trustworthiness of her claim.
The Complaint
3.1 The author claims that the decisions taken by the Swedish authorities
are founded on a false image of the situation in Zaire. She refers to the
report of the Special Rapporteur of the Commission on Human Rights on the
situation of human rights in Zaire, [FNb] where it is reported that the
practice of torture is common in Zaire and that female prisoners are often
raped. She also refers to the background paper on Zairian refugees and
asylum seekers of March 1995 of the Office of the United Nations High
Commissioner for Refugees (UNHCR), where it is mentioned that the Security
Police have shown a particular interest in returned asylum seekers, who are
being subjected to long sessions of interrogation.
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[FNb] E/CN.4/1994/67
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3.2 The author recalls that she has been a member of UDPS since 1987 and
that her restaurant was frequently used by the local branch of the party for
political meetings. Moreover, the author headed the local women's group and
participated in several large UDPS demonstrations against the Mobutu regime.
In the summer of 1990 she organized a women's protest at Kinshasa in which
thousands of women participated. Moreover, the author states that she has
continued her political activities in Sweden and that she regularly attends
UDPS meetings and demonstrations. A letter of support from the UDPS Sweden
is enclosed with the communication. In this context, the author also states
that between 1985 and 1990 her husband was the personal secretary of Bosasi
Bolia, a co-founder and leader of UDPS. At present, he is seeking asylum in
the Congo.
3.3 Medical certificates prepared by the Centre for Torture and Trauma
Survivors in Stockholm show scar tissue consistent with the author's claims
of torture and ill-treatment, as well as signs of a distinct post traumatic
stress disorder.
3.4 The author asks the Committee to request Sweden, pursuant to rule 108,
paragraph 9, of the rules of procedure, not to return her to Zaire while her
communication is under consideration by the Committee.
State Party's Observations
4. On 28 February 1996, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments and requested
the State party not to expel the author while her communication was under
consideration by the Committee.
5.1 By submission of 18 April 1996, the State party challenges the
admissibility of the communication, but also addresses the merits of the
case. It requests the Committee, should it not find the communication
inadmissible, to examine the communication on its merits as soon as
possible.
5.2 The State party recalls that it was one of the co-sponsors of resolution
1995/69 adopted by the Commission on Human Rights on 8 March 1995 concerning
the human rights situation in Zaire [FNc] and that it is aware of the
deplorable situation with regard to human rights in Zaire. However, the
State party, while referring to the Special Rapporteur's report on Zaire,
submits that there seems to have been a change for the better since the
appointment of Mr. Kengo Wa Dondo as Prime Minister on 14 June 1994.
Political prisoners were released and politically motivated detentions
declined drastically. In this context, the State party also refers to a
report prepared by the Voice of the Voiceless for Human Rights concerning
problems of Zairian refugee claimants, where it was concluded that it could
not be confirmed a priori that expelled Zairian asylum seekers are in danger
in Zaire. It was said that each case deserved to be examined on its own
merits.
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[FNc] Official Records of the Economic and Social Council, 1995, Supplement
No. 3 (E/1995/23 and Corr.1 and 2), chap. II.A.
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5.3 As regards the domestic procedure, the State party explains that the
basic provisions concerning the right of aliens to enter and to remain in
Sweden are found in the 1989 Aliens Act. For the determination of refugee
status there are normally two instances, the Swedish Immigration Board and
the Aliens Appeals Board. In exceptional cases, an application is referred
to the Government. Chapter 8, section 1, of the Act corresponds to article 3
of the Convention and states that an alien, who has been refused entry or
who shall be expelled, may never be sent to a country where there is firm
reason to believe that he or she would be in danger of suffering capital or
corporal punishment or of being subjected to torture, nor to a country where
he or she is not protected from being sent on to a country where he or she
would be in such danger. Further, under chapter 2, section 5, subsection 3,
of the Act, an alien, who is to be refused entry or expelled, can apply for
a residence permit if the application is based on circumstances that have
not previously been examined in the case and if either the alien is entitled
to asylum in Sweden or if it will otherwise be in conflict with humanitarian
requirements to enforce the decision on refusal of entry or expulsion.
5.4 As regards the admissibility of the communication, the State party
argues that the communication is inadmissible as being incompatible with the
provisions of the Convention, for lacking the necessary substantiation.
6.1 As to the merits of the communication, the State party refers to the
Committee's jurisprudence in the case of Mutombo v. Switzerland, [FNd] and
the criteria established by the Committee, first, that a person must
personally be at risk of being subjected to torture, and, second, that such
torture must be a necessary and foreseeable consequence of the return of the
person to his or her country.
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[FNd] Communication No. 13/1993, views adopted on 27 April 1994.
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6.2 As regards the general situation of human rights in Zaire, the State
party acknowledges that the situation is grave and unacceptable, despite
some improvements since 1994. The State party submits, however, that in
general returning asylum seekers are not faced with political persecution.
6.3 The State party refers to its own legislation and states that its
principles reflect the same principle as that of article 3 of the
Convention. The State party's authorities thus apply the same test as the
Committee in deciding on the return of a person to his or her country. The
State party recalls that the mere possibility that a person may be subjected
to ill-treatment in his or her country of origin does not suffice to require
that a person be given asylum in a third country or to prohibit his or her
return as being incompatible with article 3 of the Convention.
6.4 In the instant case, the State party relies on the opinions of the
Immigration Board and the Appeal Board, which after a careful examination of
the facts of the author's case, concluded that she would not be personally
at risk of being subjected to torture when returned to Zaire.
6.5 The State party further points to inconsistencies in the author's story,
in relation to the rape of which she was allegedly a victim. The author,
according to the medical statement of May 1995, had said that she was raped
more than 10 times during the time she spent in detention, whereas in her
interview with the Swedish police in February 1992 she mentioned being
beaten, but not raped, and in her account of 21 January 1993 she mentions
having been raped twice. According to the State party, these inconsistencies
impact significantly on the veracity of the author's story. Further, the
State party recalls that the medical evidence was only submitted in 1995,
that is, after the procedure for the establishment of the refugee claim was
terminated, thus weakening further the author's credibility.
6.6 The State party argues that the evidence presented by the author is
insufficient to demonstrate that the risk of her being tortured is a
foreseeable and necessary consequence of her return to Zaire. In this
context, the State party submits that the present day situation in Zaire is
different than that when the author was being detained for her political
activities and that there is no reason to believe that the author now would
be arrested by the authorities upon her return to her country.
Counsel's Comments
7.1 In her comments on the State party's submission, counsel confirms that
the Swedish Immigration Board, on 8 March 1996, decided to stay the author's
expulsion until 25 May 1996.
7.2 She refers to the United States Department of State report on human
rights practices in Zaire of 1995, where it was stated that the Government
continued to tolerate and commit serious human rights abuses, especially
through its security forces.
7.3 As regards the alleged inconsistencies in the author's story, counsel
maintains that the author already at first instance invoked serious
ill-treatment and rapes, and refers to articles in medical journals
explaining the psychological blockage in torture victims preventing them
from telling the full story upon arrival in a safe country. In this context,
counsel points out that the author's statements about her sufferings are
initially sparse and casual, and are only elaborated later, with the passage
of time. Counsel emphasizes that the author's story has remained unchanged,
coherent and plausible throughout. Counsel further states that the failure
to present medical evidence before July 1995 was caused by the author's
conviction of the righteousness of her claims and further by a lack of
financial means.
7.4 As regards the State party's statement that the human rights situation
in Zaire has improved and that therefore there is no danger for the author
in returning to her country, counsel refers to an opinion of a UNHCR senior
legal adviser, on 9 May 1995, to the effect that, although the UNHCR no
longer opposed the return of rejected asylum seekers to Zaire, an exception
existed for groups particularly at risk, such as active members of Zairian
political opposition parties and in particular of UDPS. Counsel argues that
despite certain improvements, there still does exist a consistent pattern of
gross, flagrant or mass violations of human rights in Zaire.
7.5 Counsel concludes that the author has presented sufficient evidence that
she was a political activist for UDPS and well known to the Zairian
authorities, that she has been imprisoned, tortured and ill treated owing to
her political activities, that the human rights situation in Zaire is
deplorable and that especially UDPS activists are in danger of persecution.
She therefore claims that the author's return to Zaire would have the
foreseeable and necessary consequence of exposing her to a real risk of
being detained and tortured.
Issues and Proceedings before the Committee
8. 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 also notes that all available
domestic remedies have been exhausted and finds that no further obstacles to
the admissibility of the communication exist. Since both the State party and
the author's counsel have provided observations on the merits of the
communication, the Committee proceeds immediately with the consideration of
the merits of the communication.
9.1 The issue before the Committee is whether the forced return of the
author to Zaire would violate the obligation of Sweden 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 or she would be in
danger of being subjected to torture.
9.2 Pursuant to article 3, paragraph 1, the Committee must decide whether
there are substantial grounds for believing that Ms. Kisoki would be in
danger of being subject to torture upon return to Zaire. 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. 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; specific 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 or her specific circumstances.
9.3 In the instant case, the Committee considers that the author's political
affiliation and activities, her history of detention and torture, should be
taken into account when determining whether she would be in danger of being
subjected to torture upon her return. The State party has pointed to
contradictions and inconsistencies in the author's story, but the Committee
considers that complete accuracy is seldom to be expected by victims of
torture and that such inconsistencies as may exist in the author's
presentation of the facts are not material and do not raise doubts about the
general veracity of the author's claims.
9.4 The Committee has noted the State party's assertion that in general
returned asylum seekers do not face political persecution upon return, owing
to the fact that the Government of Zaire is aware that many leave because of
economic, not political reasons. Be this as it may, in the instant case the
author has claimed, and the State party has not contested, that she was an
active member of UDPS, chairperson of the women's group in her home town,
that her husband was the personal secretary of one of UDPS leaders, that she
was detained because of her political activities and that she has continued
her political activities in support of UDPS in Sweden. In the circumstances,
the Committee need not take into consideration the general situation of
returned refugee claimants, but rather the situation of returned refugee
claimants who are active members of the opposition to the Government of
President Mobutu.
9.5 In this context, the Committee has noted the position of the United
Nations High Commissioner for Refugees, according to whom deportees who are
discovered to have sought asylum abroad undergo interrogation upon arrival
at Kinshasa airport, following which those who are believed to have a
political profile are at risk of detention and consequently ill-treatment.
The Committee also notes that, according to the information available,
members of UDPS continue to be targeted for political persecution in Zaire.
9.6 In the circumstances, the Committee considers that substantial grounds
exist for believing that the author would be in danger of being subjected to
torture if returned to Zaire.
9.7 The Committee 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
forcibly returning Pauline Muzonzo Paku Kisoki to Zaire.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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