against Torture, established in conformity with article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Meeting on 19 May 1998,
Having completed consideration of communication No. 90/1997 submitted to the
Committee against Torture under article 22 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken account of all the information communicated to it by the author
of the communication and the State party,
Adopts the following:
Views under article 22, paragraph 7, of the convention
1. The author of the communication is A. L. N., an Angolan born on 25
September 1978. He is currently resident in Switzerland where he has applied
for refugee status and risks being sent home. The author claims that his
expulsion would constitute a violation of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
The Facts as Submitted by the Author
2.1 The author states that on 16 February 1997 his father, a member of the
União Nacional para a Indepêndencia Total de Angola (UNITA) gave him a video
cassette on torture and massacres perpetrated by the Movimento Popular para
a Libertação de Angola (MPLA) for him to take to a friend. The cassette
contained a scene filmed in 1987 showing soldiers plunging the then
nine-year-old author's hand into boiling water in front of his father. The
author says that the scars are still visible. He was arrested on the way
during an identity check by MPLA soldiers, who took him to an unknown site
in Luanda, where he was beaten. He was then forced to take the soldiers to
the family home so that they could arrest his father. At the house he
managed to escape while the soldiers were momentarily distracted. On 19
February 1997, he left the country on a borrowed passport issued to the son
of one of his father's friends and went to Italy. He arrived in Switzerland
on 24 February 1997.
2.2 That same day, the author submitted an application for asylum to the
Refugee Registration Centre in Geneva (CERA). On 2 June 1997, the Federal
Office for Refugees (ODR) rejected the application and ordered his
expulsion, finding that the author's statements did not meet the
plausibility criteria laid down in article 12 (a) of the Federal Asylum Act.
The Office also said there was no evidence to suggest that the author would
be specifically and seriously likely, in the event of a return to his
country, to be subjected to torture or to cruel, inhuman or degrading
2.3 The author appealed against this decision before the Commission de
recours en matière d'asile (CRA), which rejected the appeal in a decision
dated 16 July 1997. The Commission found that the author had not shown that
his return to his country of origin would put him in danger. It added that
the author was young, in good health and, according to his own statements,
capable of going back to live in Luanda, since he had already lived there
and could count on his family for support.
3. The author says that he is still on the wanted list because of the video
cassette and fears for his physical and mental health if sent home. He says
that he is part of the Bakongo ethnic minority, and that CRA itself has
acknowledged that members of that group are exposed to some danger.
The State Party's Observations on the Admissibility and Merits of the
4. On 16 October 1997 the Committee, through its Special Rapporteur,
forwarded the communication to the State party for its observations.
5.1 In a reply dated 15 December 1997, the State party indicated that the
author had exhausted domestic remedies. The communication could thus be
considered on its merits.
5.2 The author's main point, i.e., his arrest after coming into possession
of a video cassette showing a scene in which soldiers plunged his hand into
boiling water, had not been consistently related at the two hearings on his
application, at CERA and before the Cantonal authorities. His accounts were
vague or contradictory as regards both the origin of the video cassette and
the way in which it was supposed to have been filmed or what precisely it
5.3 The author said that the soldiers had not asked him who the video
cassette was for. There again his story was not credible. Experience
unfortunately showed that, as a rule, people arrested in such cases were
tortured precisely in order to obtain information about those who had an
interest in documents challenging the regime in power.
5.4 The author's account of how he managed to escape was also unconvincing.
It did not seem possible that the author, escorted by five guards, should
have managed to escape from them as easily as described, without even being
5.5 On the strength of the author's tale, the scars visible on his hands
could not be ascribed with sufficient probability to acts of the kind
prohibited by the Convention. They could just as well have resulted from an
occupational or domestic accident, for example. The author had submitted no
medical certificate indicating that he was still traumatized by the incident
as he stated in his communication.
5.6 The State party also said that no causal link could be established
between the incident related - the author's suffering at the hands of MPLA
soldiers, which dated from 1987 - and his departure for Switzerland.
5.7 As regards the situation in the country, Angola was no longer in a state
of civil war or widespread violence. The peace process had passed a
milestone with the establishment on 11 April 1997 of a Government of unity
and national reconciliation. The author's claim to have been arrested and
beaten by MPLA soldiers on 16 February 1997 for being in possession of a
compromising video cassette seemed somewhat improbable in the light of the
moves towards national reconciliation made by the various opposition groups,
including MPLA and UNITA.
5.8 CRA had concluded it would be unreasonable to require the author to be
returned to areas under UNITA control or close to the demarcation lines.
Elsewhere, failing specific risks, there were adequate safeguards of his
safe return at least to the capital or a number of large urban
conglomerations along the coast. Living conditions in Luanda, where there
were serious problems, were nevertheless not such as to rule out on
humanitarian grounds the return of young, single people in good health.
5.9 Lastly, the author said that he belonged to an ethnic minority, the
Bakongo, whose members CRA itself acknowledged to face certain dangers. CRA
had indeed stated that Bakongos and members of other ethnic groups could not
get back to their home districts from Luanda without some danger. But it had
also said that, contrary to rumour and despite rivalries more social than
ethnic in nature, there was no indication that, since the signature of the
Lusaka Protocol, the governmental authorities had taken any steps that
directly or indirectly discriminated against or persecuted minority
population groups in Angola, including the Bakongo, members of whom were to
be found throughout the State apparatus.
5.10 The fact that Bakongos had previously lived in Luanda or still had
family ties there was one factor that entered into consideration in deciding
whether or not they could find refuge within the country and survive,
socially and economically, in the capital.
5.11 In the present case, the author had not shown that returning to his
country of origin would put him in any specific danger. He was young and in
good health, and according to his own statements would be able to
re-establish an existence in Luanda since he had already lived there and
could count on his family for support.
5.12 Even if the Committee concluded that the human rights situation in
Angola, including the unfortunate position that the author claimed for his
ethnic minority, was serious and gave rise to concern, such a finding would
not, in the absence of supplementary indications, be sufficient to establish
that the author was in personal danger of being tortured.
5.13 In the light of the foregoing, the State party considered that
returning the author to Angola would not constitute a violation of the
6. By letter dated 17 March 1998, the author indicates that the situation in
Angola is very unstable and that the country is still at war. If he were
expelled, he would thus be in physical danger.
Issues and Proceedings Before the Committee
7. Before considering any claims contained in the 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 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 domestic remedies have been exhausted, and finds there are no
further obstacles to its declaring the communication admissible. Since the
State party and the author have both made comments regarding the substance
of the communication, the Committee will proceed to consider the
communication on its merits.
8.1 The Committee must decide whether sending the author back to Angola
would violate Switzerland's obligation under article 3 of the Convention not
to expel or return (refouler) an individual to another State if there are
substantial grounds for believing that he would be in danger of being
subjected to torture.
8.2 The Committee must decide, pursuant to article 3, paragraph 1, if there
are substantial grounds for believing that the author would be in danger of
being tortured if sent back to Angola. To do so, it must take account of all
relevant considerations as called for by article 3, paragraph 2, including
the existence of a consistent pattern of gross, flagrant or mass violations
of human rights. The aim, however, is to determine whether the individual
concerned would personally risk 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 sufficient grounds for determining whether the particular
person would be in danger of being subjected to torture upon his return to
that country; additional grounds must be adduced to show 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 particular circumstances.
8.3 The Committee observes that past torture is one of the elements to be
taken into account when examining a claim under article 3 of the Convention,
but its purpose in considering the communication is to decide whether, if
the author were returned to Angola, he would now risk being tortured.
8.4 In the case in point the Committee notes the author's claim to have been
tortured in 1987 and beaten upon his arrest in February 1997. The author has
however, supplied no evidence, whether medical certificates or other,
attesting to acts of torture or ill-treatment or the sequelae of such. In
particular, the Committee notes that the author has supplied no detailed
information on how he was treated when arrested in February 1997, although
it was that arrest that prompted him to leave for Switzerland.
8.5 The author bases his fear of torture on the fact that he is still being
sought by MPLA soldiers because of the video cassette. The Committee notes,
however, that he has put forward no reason to suggest that he is indeed
still wanted. Neither does he make any allusion to the circumstances of his
family, including his father, who, according to the author, was also wanted
in connection with the video cassette.
8.6 The Committee notes that the situation in Angola, given the peace
process, is still difficult, as recently stated in a report by the
Secretary-General on the United Nations Observer Mission in Angola (MONUA).
The same report states that human rights violations, including torture,
which are attributed to the national police among other parties, continue to
take place. But it also says that significant progress has been made and
that the Government and UNITA have agreed on important points which should
enable the peace process to advance. It would therefore seem that the
situation in the country has not deteriorated since the author left.
8.7 The Committee points out that, for the purposes of article 3 of the
Convention, the individual concerned must face a foreseeable, real and
personal risk of being tortured in the country to which he is returned. On
the basis of the above considerations, the Committee is of the opinion that
such a risk has not been established.
8.8 In the light of the foregoing, the Committee considers that the
information before it does not show substantial grounds for believing that
the author runs a personal risk of being tortured if sent back to Angola.
9. 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 facts before it do not indicate
a breach of article 3 of the Convention.
[Text adopted in French (original version) and translated into English,
Spanish and Russian.]