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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 16 November 2007,
Having concluded its consideration of complaint No. 299/2006, submitted to
the Committee against Torture on behalf of Mr. Jean Patrick Iya 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
complainant, his counsel and the State party,
Adopts the following decision under article 22, paragraph 7, of the
Convention against Torture.
1.1 The complainant is Jean Patrick Iya, a national of the Democratic
Republic of the Congo born in 1968 and facing deportation from Switzerland
to his country of origin. He claims that his deportation would constitute a
violation by Switzerland of article 3 of the Convention. He is represented
by counsel, Mr. Guido Ehrler.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee brought the complaint to the State party's attention on 21
December 2006. [FN1] At the same time the Committee, pursuant to rule 108,
paragraph 1, of its rules of procedure, requested the State party not to
deport the complainant to the Democratic Republic of the Congo while his
complaint was being considered. The State party acceded to such request.
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[FN1] On 14 July 2006, the complaint was mistakenly brought to the attention
of the Permanent Mission of the Democratic Republic of the Congo in Geneva.
The mistake was discovered in early December 2006 and immediately corrected.
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1.3 On 20 February 2006, the State party provided its comments on the merits
of the case and asked the Committee to lift its request for interim
measures. On 22 May 2007, the Committee decided to maintain its request for
interim measures.
The Facts as Presented by the Complainant
2.1 From 1995 to 1997, the complainant worked as a journalist for the
newspaper Elima in the Democratic Republic of the Congo, his main duty being
to compile and publish information on human rights violations under the
Mobutu regime. He notes that, during that period, he published articles on
nearly 300 cases of human rights violations and "had problems" with the
Mobutu regime as a result. After president Kabila took power in 1997, the
complainant was detained on several occasions and, in late 1997, the
publication of Elima was prohibited.
2.2 In January 1997, the complainant joined the Union for Democracy and
Social Progress (UDPS) and was responsible for the recruitment of young
militants. In January 1998, he was arrested and his press card was
confiscated, which put an end of his career as a journalist. From 2000 to
2002, he worked for a non-governmental organization.
2.3 In June 2002 and May 2003, UDPS organized demonstrations against the
Kabila regime. The complainant, who was among the organizers, was arrested
on both occasions. On the first occasion, he was detained without charges at
the military camp of Tshatshi and later transferred to the Gomb� prison,
where he was allegedly whipped and released two weeks later. On the second
occasion, he was detained in Tshashti and then transferred to the Makala
prison, a provisional arrest warrant having been issued against him on 22
May 2003.
2.4 On 1 May 2004, the complainant allegedly escaped from prison by bribing
two prison guards. He left the country for Brazzaville, in the Republic of
the Congo, where he stayed at a UDPS local representative's. Four days
later, he travelled under a false identity to Lagos, Nigeria, where he
stayed until 26 June 2004. From Lagos he flew to Italy holding a Nigerian
citizen's passport and finally arrived in Switzerland, where he sought
asylum on 29 June 2004. In Switzerland, he was asked to provide documents
certifying his identity within 48 hours, which he was unable to do, as he
was not able to contact his family in the Democratic Republic of the Congo.
2.5 On 3 May 2004, a search warrant was issued by security forces in the
Democratic Republic of the Congo against the complainant, wanted for
offenses against the public safety and against the Chief of state.
2.6 On 9 August 2004, the Swiss Federal Office for Refugees (ODR) refused to
consider the merits of the complainant's asylum request and ordered his
deportation. This decision was adopted on the basis of the complainant's
failure to provide identification documents within 48 hours since the filing
of his complaint with allegedly no valid justification for this delay. ODR
considered that the complainant's statement that his identity card had been
confiscated during his detention in May 2003 was not credible and that his
declaration on his alleged persecution was vague and did not rely on
concrete facts.
2.7 On 19 August 2004, the complainant's appeal was rejected by the Asylum
Appeals Board (CRA). Although the complainant submitted two documents to
prove his identity, a certificate of celibacy and a degree certificate, the
Board considered that these documents should have been submitted within the
initial 48-hour deadline. It further considered that the complainant was not
credible.
2.8 On 24 August 2005, the complainant requested a reopening of the
proceedings and submitted further documents to prove his identity, including
a UDPS membership card, a certificate confirming his engagement as a UDPS
activist and the party's statutes, as well as other documents related to the
party's activities. On 22 September 2005, the CRA rejected this request on
the ground that a decision not to consider the merits of the case could not
be quashed unless sufficient explanation was provided as to the delay in
submitting the relevant documents.
2.9 The complainant's second request to reopen the proceedings was rejected
by the CRA on 4 January 2006, on the basis of his failure to pay the
judicial fees. The CRA also rejected his request to pay these fees on
installments.
The Complaint
3.1 The complainant claims that his deportation from Switzerland to the
Democratic Republic of the Congo would violate article 3 of the Convention,
as there are serious grounds to believe that he would be at risk of torture
if returned. He notes that a search warrant has been issued against him and
that torture is a common practice in the Democratic Republic of the Congo.
He refers to Amnesty International 2005 Report to confirm this statement.
3.2 He further claims that the fact that his asylum application and the
evidence provided were not considered in substance violates the principles
of article 3.
State Party's Observations on the Merits
4.1 On 20 February 2007, the State party does not contest the admissibility
of the communication. On the merits, the State party contends that the
complainant has not established a personal, real and foreseeable risk of
torture upon his return to the Democratic Republic of the Congo. While
noting the human rights situation in the Democratic Republic of the Congo,
the State party recalls that this situation is not in itself a sufficient
element to conclude that the complainant would be at risk of torture if
returned. It further recalls that the complainant has not submitted any
evidence to national authorities that proves the acts of ill treatment that
he allegedly suffered while he was detained in Gomb� prison.
4.2 The State party notes that, according to the law in force at the time
where the proceedings against the complainant were held -the Asylum Act of
26 June 1998-, Swiss authorities could not consider an asylum request if the
asylum seeker had failed to submit identity documents within 48 hours since
the asylum request had been filed. This Act was amended by Federal Act of 16
December 2005, which entered into force on 31 December 2005. The State party
maintains that, from that date, both the ODR and the CRA thoroughly examined
the issue of the complainant's alleged persecution and concluded that the
complainant's statements were vague and not credible, in particular his
description of his escape from prison.
4.3 The State party contends that the complainant has not submitted any
evidence of his political engagement and alleged persecution. In the State
party's view, the only evidence that would prove his political activities in
the Democratic Republic of the Congo was a certificate by the UDPS local
representative in Lagos. According to the ODR, this document could be easily
"bought" in the Democratic Republic of the Congo. Additionally, the header
of this "certificate" does not correspond to the text and the document is
otherwise incomplete. The State party further questions the validity of the
provisional arrest warrant and the search warrant allegedly issued by the
Public Ministry in the Democratic Republic of the Congo and notes that the
complainant has not explained how his family managed to obtain the original
of these internal documents. It adds that DRC forms can be easily obtained
and that the desired text could then be added.
4.4 The State party notes that, according to the interrogation records of 22
July 2004, the complainant's knowledge of the political situation in the
Democratic Republic of the Congo did not reveal a political interest and, in
particular, an interest in journalistic activities in the country. According
to these records, the complainant had not been able to name any of the
leaders of UDPS and did not show a detailed knowledge of the party's
structure. The State party contends that the complainant's presentation of
events is otherwise vague and poorly substantiated and that he is therefore
not credible.
Complainant's Comments on the State Party's Observations on the Merits
5.1 On 7 September 2007, the complainant recalls the appalling situation of
human rights in the Democratic Republic of the Congo. It notes that the
Committee has denounced that security forces continue to practice arbitrary
detentions without any judicial control and to inflict torture on detainees.
[FN2] Detention conditions, including overcrowdings, malnutrition and lack
of medical care, put in danger the lives of detainees and a number of them
are reported dead. It further notes that UDPS is one of the oldest
opposition parties in the Democratic Republic of the Congo. In summer 2005
this party organized demonstrations against the deferment of elections and
10 demonstrators resulted dead. In March 2006, UDPS members demonstrated in
Kinshasa against the new electoral act and were repressed by security forces
with truncheons and tear gas. In May and June 2006, UDPS members were
arbitrarily arrested and ill-treated in Mbuji-Mayi. The complainant notes
that journalists who are critical with the regime are constantly targeted by
Congolese authorities. In this context, the complainant maintains that he
would be subject to a risk of torture if returned, in light of his double
condition of journalist and UDPS militant, as well as the fact that he is
being searched by the authorities since his escape from prison.
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[FN2] CAT/C/DRC/CO/1/CRP.1, para. 7.
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5.2 The complainant notes that his asylum request was not rejected on the
grounds of insufficient evidence on the alleged acts of ill-treatment
suffered in the Democratic Republic of the Congo but because he failed to
provide his travel documents within 48 hours since the request had been
filed. He insists that his complaint was never examined in substance by
national immigration authorities.
5.3 With regard to his alleged lack of credibility, the complainant notes
that the interrogations at the Registry Centre serve the purpose of
registering asylum seekers and informing them on the procedure to follow.
Therefore, interrogation records have little evidentiary value in examining
the asylum request. He adds that, even though he was interrogated in a
"rudimentary manner" on his grounds for asylum, his declarations were
sufficiently precise, detailed and coherent to prove that he was persecuted
in the Democratic Republic of the Congo. As to his alleged lack of knowledge
of the structure of UDPS, he claims that from the interrogation record it
transpires that he understood that he was being asked about the current
structure, to which he replied that he could not possibly know as he had
been in prison for a year. He notes that the ODR staff should have
dissipated this misunderstanding. He adds that, contrary to the State
party's submission, the interrogation records show that he had a sufficient
knowledge of the political situation of his country.
5.4 The complainant notes that the State party does not indicate the
information sources on which it relies to question the validity of the
documents submitted to immigration authorities. He adds that the State party
failed to comply with its obligation to thoroughly investigate the
complainant's political activities on the ground and that the argument
according to which any of these documents can be "bought" in the Democratic
Republic of the Congo is not substantiated.
5.5 The complainant notes that the State party does no longer question his
identity or the fact that he obtained a degree in journalism and that he
worked for the opposition journal Elima. He recalls that journalists in the
Democratic Republic of the Congo are particularly exposed to human rights
violations. 5.6 Finally, he explains that he has been presented in many
articles by Amnesty International and other organizations as a political
opponent that had been imprisoned in the Democratic Republic of the Congo
and that this fact alone would be sufficient to put him at risk of torture
if returned to this country.
Issues and Proceedings Before the Committee
6.1 Before considering any claims contained in a complaint, 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 further notes that
domestic remedies have been exhausted and that the State party does not
contest admissibility. Accordingly, the Committee finds the complaint
admissible and proceeds to its consideration on the merits.
6.2 The issue before the Committee is whether the complainant's removal to
the Democratic Republic of the Congo would constitute a violation of the
State party's obligation, under article 3 of the Convention, not to expel or
return a person to a State where there are substantial grounds for believing
that he would be in danger of being subjected to torture.
6.3 In assessing whether there are substantial grounds for believing that
the complainant would be in danger of being subjected to torture if returned
to the Democratic Republic of the Congo, the Committee must take account of
all relevant considerations, including the existence of a consistent pattern
of gross, flagrant or mass violations of human rights. However, the aim of
such an analysis is to determine whether the complainant runs a personal
risk of being subjected to torture in the country to which he would be
returned. It follows that the existence of a pattern of gross, flagrant or
mass violations of human rights in a country does not as such constitute
sufficient reason for determining that a particular person would be in
danger of being subjected to torture on return to that country; additional
grounds must be adduced to show that the individual concerned would be
personally at risk. Conversely, the absence of a consistent pattern of
flagrant violations of human rights does not mean that a person might not be
subjected to torture in his or her specific circumstances.
6.4 The Committee recalls its general comment on the implementation of
article 3, that "the risk of torture must be assessed on grounds that go
beyond mere theory or suspicion. However, the risk does not have to meet the
test of being highly probable" [FN3]
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[FN3] Official Records of the General Assembly, Fifty-third Session,
Supplement No. 44 (A/53/44), annex IX, para. 6.
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6.5 In the present case, the complainant contends that a personal and
present risk of torture in the Democratic Republic of the Congo is justified
by his past activities as a journalist and as a militant of an opposition
party, as a result of which he claims to have been detained on several
occasions and ill-treated, and by the fact that he is allegedly searched in
this country since his escape from the Gomb� prison in 2004. The Committee
notes that the State party has questioned the complainant's credibility. At
the same time, the Committee notes the complainant's argument that national
authorities never examined his request in substance but rejected it on
procedural grounds. The Committee takes note of the entry into force of the
Swiss Federal Act on 31 December 2005 amending the 1998 Asylum Act, article
38 of which established the 48-deadline requirement for immigration
authorities to consider the merits of an asylum request. The State party
contends that, since that date, national authorities have thoroughly
examined the complainant's request in substance. However, the Committee
observes that both the ODR and the CRA rejected the complainant's request on
the basis of his failure to submit identity documents within the initial
deadline and that his two requests to reopen the procedures were rejected by
the CRA also on procedural grounds. All these decisions were adopted prior
to the entry into force of the new Federal Act except for the last CRA
decision of 4 January 2006, which rejected the complainant's application on
the basis of his failure to pay judicial fees. Therefore, the Committee
considers that his case was never examined on the merits by national
authorities.
6.6 The State party has further questioned the authenticity of the evidence
submitted by the complainant. At the same time, the complainant argues that
national authorities did not thoroughly examine the evidence submitted by
him or corroborate his declarations on the ground. The Committee observes
that the complainant has provided a coherent version of the facts and the
relevant evidence to corroborate these facts. Therefore, the Committee
concludes that the State party's arguments to challenge the validity of this
evidence and the complainant's declarations have not been sufficiently
substantiated.
6.7 Finally, the Committee recalls that torture and ill-treatment of
detainees by security forces and services in the Democratic Republic is
still common. [FN4]
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[FN4] See the Committee's Concluding Observations on the report submitted by
the Democratic Republic of the Congo under the Convention against Torture
and other forms of cruel, inhuman and degrading treatment
(CAT/C/DRC/CO/1/CRP.1), paras. 6 and 7; and the Human Rights Committee's
Concluding Observations on the report submitted by the State party under the
International Covenant on Civil and Political Rights (CCPR/C/COD/CO/3),
para. 16.
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6.8 The Committee considers that the complainant's political activities and
his recent detention in the Democratic Republic of the Congo, together with
the fact that he is being searched in this country, are sufficient arguments
to conclude that he would face a personal risk of torture if forcibly
returned to the Democratic Republic of the Congo.
7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, is of the view that the forcible return of the complainant
to the Democratic Republic of the Congo would constitute a breach by
Switzerland of his rights under article 3 of the Convention. 8. In pursuance
of rule 112, paragraph 5, of its rules of procedure, the Committee invites
the State party to inform it, within 90 days from the date of the
transmittal of this decision, of the steps it has taken in accordance with
the above observations.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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