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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 19 November 1999,
Having concluded its consideration of communication No. 118/1998, 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 into account all information made available to it by the author
of the communication and the State party,
Adopts the following decision:
1.1 The author of the communication is K.T., a citizen of the Democratic
Republic of the Congo (DRC) born in 1969 and currently residing in
Switzerland, where he is seeking asylum and is at risk of deportation. He
maintains that sending him back to the DRC would constitute a violation by
Switzerland of article 3 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. He is represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention the
Committee brought the communication to the attention of the State party on
20 October 1998.
Facts as Submitted by the Author
2.1 The author states that he was a member of the People's Revolution
Movement (MPR) from 1992. He was working on behalf of former President
Mobutu and promoting Mobutu's interests. He received money from the MPR and
had no other occupation. On 10 May 1997, six soldiers loyal to Laurent-Désiré
Kabila questioned him and sacked his house. The author hid for four days at
the home of his superior in the MPR before leaving the country on 14 May
1997 using a false passport.
2.2 The author entered Switzerland illegally on 5 June 1997 and the same day
applied for asylum at the Geneva Registration Centre. By decision of 13
August 1997, the Federal Refugee Office (ODR) rejected the application and
gave the author until 30 September 1997 to leave Switzerland. An appeal
against that decision was lodged with the Swiss Commission of Appeal in
Refugee Matters (CRA). That appeal was dismissed on 6 August 1998 and a new
deadline of 15 October 1998 was set for the author to leave Switzerland.
The Complaint
3.1 The author contends that, if sent back to the DRC, he risks being
arrested, tortured and even killed by the army or the population, owing to
his involvement with the MPR and the fact that President Kabila is currently
hunting down all supporters of the former Government. The press and Amnesty
International have reported instances of torture and massacres committed by
soldiers of the Alliance of Democratic Liberation Forces (AFDL). It is thus
a certainty that former supporters of Mobutu are not safe in the Democratic
Republic of the Congo.
The State Party's Observations on the Admissibility and Merits of the
Communication
4.1 By letter of 17 December 1998, the State party informed the Committee
that it did not contest the admissibility of the communication. By letter of
6 April 1999 it submitted its observations on the merits.
4.2 The State party argues that the CRA did not consider, in its decision of
6 August 1998, that the risk of future persecution alleged by the author
conformed with the facts. Firstly, it had not been established that the
author had been a member of the MPR, as he had not produced a membership
card. Moreover, assuming that he had been a member of that party, it would
only have been in a minor role, as he himself had emphasized at his second
hearing. That being so, it was somewhat difficult to understand why Kabila's
soldiers should have felt the need to question him on the MPR's activities
rather than its senior members. Lastly, the CRA had found the author's
statements concerning the events of 10 May 1997 to be unconvincing. It was
known that the advance guard of the AFDL did not enter the capital until 17
May 1997. The six soldiers in question could thus only have belonged to the
regime still in place on that date. Therefore, insofar as it could be
accepted that the event actually took place, any fear of persecution would
have disappeared with the coming to power of the AFDL, Mobutu's armed forces
having been disbanded in the meantime.
4.3 The State party fully endorses the CRA's reasoning concerning the lack
of credibility of the author's allegations. It also regards the author's
statements as far from sufficient to permit the conclusion that there are
serious grounds for believing, within the meaning of article 3, paragraph 1,
of the Convention, that the author would be exposed to the risk of torture
if the decision to return him was implemented. Finally, it submits
additional observations based on article 3, paragraph 2, of the Convention.
4.4 In his communication, the author expresses his fear of being persecuted
by the army or the population because of his involvement with the MPR. Fears
of persecution by the population are not included among the relevant
considerations to be taken into account by the Committee under article 3,
paragraph 2, of the Convention. Under the above-cited article 3, paragraph
1, only persecution originating from the army, where accepted, may be
recognized as relevant.
4.5 The author never claimed that he had been arrested or tortured in the
past. Only on 10 May 1997 did he apparently find himself in trouble, for the
first and only time, when Kabila's soldiers allegedly came to his home and
questioned him. Yet, as the CRA mentions in its decision, there is no
serious evidence that might lead one to think that such an event ever
actually took place. Firstly, considering the minor nature of the duties
which the author says he carried out for the MPR it is hard to see what
reason the AFDL soldiers might have for taking an interest in him rather
than in the party's political leaders, who were certainly better informed
than he on the subject of the MPR's financial resources. Secondly, on the
date given by the author the AFDL's troops had not yet entered the capital.
In addition, even if the author's version was accepted - thus implying that
his membership of the MPR was an established fact, which is far from being
the case - that would in no way constitute a basis for fear of future
persecution. It is difficult to see why the author would be tortured on his
return if he was not mistreated during his supposed interrogation on 10 May
1997. In order to give sufficient substance to the risk of future
persecution, the author should have provided other evidence relating to the
period after his escape which would support the belief that the risk of
torture was likely to materialize.
4.6 This communication differs from those cases in which the Committee
considered that the return of the authors to Zaire would breach article 3 of
the Convention. By contrast with the communications Mutambo v. Switzerland
[FN1] and Muzonozo Paku Kisoki v. Sweden, [FN2] the author of the present
communication has been unable to demonstrate that he left his country
because of persecution suffered in the past or that his political activities
in host countries have given rise to a greater fear that he would be
tortured if he were returned to his own country. Lastly, the author has not
argued that his ethnic origins could expose him to the risk of torture.
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[FN1] CAT/C/12/D/13/1993.
[FN2] CAT/C/16/D/41/1996.
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4.7 Neither has it been shown that he was a member of the MPR.
Notwithstanding his intention to submit his membership card, which
supposedly remained at his home after his departure, it would seem that the
author has made no move to recover it. Yet, according to information from
the Swiss Embassy in Kinshasa, postal links with the DRC are operating
normally. Private companies such as DHL and EMS are well established in the
capital and provide an effective postal service. Moreover, the author has in
no way suggested that his family has been exposed to persecution by the
authorities. It must thus be supposed that the author has been at liberty to
contact his family with a view to recovering his MPR membership card. That
said, even had the author been a member of the MPR, that would not
constitute grounds for considering that the risk of torture had been
sufficiently established. The former members of the MPR in the DRC number
hundreds of thousands, and the Government has taken no general measures of
persecution against them. Moreover, the author has been unable to provide
detailed information on the duties he performed for the MPR. In his
communication, he has not even deemed fit to provide any information on the
subject.
4.8 In the light of the foregoing considerations, the State party concludes
that there is nothing to indicate the existence of serious grounds for
fearing that the author would personally risk being exposed to torture upon
returning to the DRC.
The Author's Comments
5.1 By letter of 15 July 1999, the author informed the Committee that he was
in custody pending his return to the DRC. He reverts to the subject of the
Swiss authorities' interpretation as to the origin of the threat to himself
in his country. According to the CRA, he ought to have had no fear of
persecution, since on 10 May 1997 Kabila's forces had not yet entered
Kinshasa. In fact, by 10 May 1997 a number of infiltrators had already
reached the capital, although officially the advance guard did not arrive
until 17 May. It was soldiers of the AFDL who interrogated the author. There
could be no question of his confusing them with soldiers belonging to the
armed forces of President Mobutu, who held no fears for him as they knew
him.
5.2 The author argues that it is now impossible for him to provide proof of
his political activities. As to his MPR membership card, he points out that
if communications between the DRC and Switzerland are supposed to be
functioning perfectly, which is far from likely given the state of the
postal service in Kinshasa, that can only have come about very recently. He
had no news of his family for months following his arrival in Switzerland
precisely because of the communication problems. He eventually learned
through a letter from his mother that she had left Kinshasa some nine months
previously to go with his brothers to Brazzaville, owing to the difficulties
she had had in Kinshasa. She informed him that, following his departure from
the country, his father had been arrested, interrogated and beaten in an
effort to make him reveal the author's whereabouts. The letter had remained
at his residence in La Chaux-de-Fonds.
5.3 The author did in fact describe in his application for asylum the work
he did for the MPR. He had been responsible for mobilizing people at the
airport in connection with all travel undertaken by President Mobutu.
Consequently he was well known, particularly in Kinshasa. That was the
reason for his continuing fear that he would be at risk of recognition and
arrest if he returned to the DRC.
5.4 The author contends that the many former employees of President Mobutu
who remain in the country without problems have preserved their freedom
through payments and bribery. He states that two compatriots whom he met in
Switzerland, and whose names he supplies, were arrested on their return to
the DRC and imprisoned at Makala.
Issues and Proceedings Before the Committee
6.1 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. 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 considers that there is no
reason why it should not declare the communication admissible. Since 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 expulsion of the author to
the Democratic Republic of the Congo would violate the State party's
obligation 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
or she 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 if returned to the Democratic Republic
of the Congo. In reaching this decision, it 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. The existence of a consistent pattern of gross, flagrant or mass
violations of human rights in the 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 returning to that country; there
must be other grounds indicating that he or she 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 in danger of torture in his or
her specific circumstances.
6.4 In the present case it must be pointed out that the author has provided
neither the Committee nor the State party with any evidence that he was a
member of MPR or that his family has been persecuted by the current regime
in Kinshasa. The Committee does not find his explanations for the absence of
such evidence convincing. Nor has the author provided evidence of the
alleged persecution to which former, in particular junior, members of MPR
are supposedly subject at present owing to their support for the country's
former president and active backing for the opposition to the regime
currently in power.
6.5 The Committee is concerned at the many reports of human rights
violations, including the use of torture, in the Democratic Republic of the
Congo, but recalls 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 or she is returned. In the light
of the foregoing, the Committee deems that such a risk has not been
established.
7. 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.
[Done in English, French, Russian and Spanish, the French text being the
original version.]
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