victim: The author
of communication: 30 September 1998
Committee against Torture, established under article 17 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
on 19 November 1999,
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
taken into account all information made available to it by the
author of the communication and the State party,
the following decision:
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.
with article 22, paragraph 3, of the Convention the Committee brought
the communication to the attention of the State party on 20 October
as submitted by the author
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.
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.
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.
State party's observations on the admissibility and merits of the
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.
State party argues that the CRA did not consider, in its
decision of 6 August 1998, that the risk of future persecution
the author conformed with the facts. Firstly, it had not
been established that the author had been a member of the
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
had emphasized at his second hearing. That being so, it
was somewhat difficult to understand why Kabila's soldiers
need to question him on the MPR's activities rather than
its senior members. Lastly, the CRA had found the author's
the events of 10 May 1997 to be unconvincing. It was known
that the advance guard of the AFDL did not enter the capital
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,
of persecution would have disappeared with the coming to
power of the AFDL, Mobutu's armed forces having been disbanded
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.
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.
author never claimed that he had been arrested or tortured
in the past. Only on 10 May 1997 did he apparently find himself
for the first and only time, when Kabila's soldiers allegedly
came to his home and questioned him. Yet, as the CRA mentions
decision, there is no serious evidence that might lead
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
party's political leaders, who were certainly better informed
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
for fear of future persecution. It is difficult to see
why the author would be tortured on his return if he was
his supposed interrogation on 10 May 1997. In order to
substance to the risk of future persecution, the author
provided other evidence relating to the period after his
escape which would support the belief that the risk of
likely to materialize.
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 (1) and Muzonozo Paku Kisoki v. Sweden, (2)
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.
has it been shown that he was a member of the MPR. Notwithstanding
his intention to submit his membership card, which supposedly
at his home after his departure, it would seem that the
author has made no move to recover it. Yet, according to information
Swiss Embassy in Kinshasa, postal links with the DRC are
operating normally. Private companies such as DHL and EMS
in the capital and provide an effective postal service.
Moreover, the author has in no way suggested that his family
exposed to persecution by the authorities. It must thus be
the author has been at liberty to contact his family with
a view to recovering his MPR membership card. That said,
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
against them. Moreover, the author has been unable to provide
information on the duties he performed for the MPR. In
his communication, he has not even deemed fit to provide
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.
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.
author argues that it is now impossible for him to provide
proof of his political activities. As to his MPR membership
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
about very recently. He had no news of his family for months
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
his brothers to Brazzaville, owing to the difficulties
she had had in Kinshasa. She informed him that, following his
the country, his father had been arrested, interrogated
in an effort to make him reveal the author's whereabouts. The letter
had remained at his residence in La Chaux-de-Fonds.
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.
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.
and proceedings before the Committee
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.
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.
Committee must decide, pursuant to article 3, paragraph
1, whether there are substantial grounds for believing that
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
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
be personally at risk of being subjected to torture. The
existence of a consistent pattern of gross, flagrant or mass
human rights in the country does not as such constitute
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
gross violations of human rights does not mean that a person
in danger of torture in his or her specific circumstances.
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
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.
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.
English, French, Russian and Spanish, the French text being the
1. 1 CAT/C/12/D/13/1993.
2. 2 CAT/C/16/D/41/1996.