CAT/C/13/D/18/1994

COMMITTEE AGAINST TORTURE

Y v. Switzerland

Communication No. 18/1994

17 November 1994

ADMISSIBILITY

Submitted by: Y [name deleted] [represented by counsel]

Alleged victim: The author

State party: Switzerland

Date of communication: 16 September 1994

The Committee against Torture, established under article 17 of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Meeting on 17 November 1994,

Adopts the following:

Decision on admissibility

1. The author of the communication is Y, a Zairian citizen, currently residing in Switzerland.

He claims to be a victim of a violation by the Swiss authorities of article 3 of the Convention

against Torture. He is represented by counsel.

The facts as submitted by the author:

2.1 The author, who was born in 1963, lived in the north of Zaire, until 1983. His father was

arrested in 1968 for political reasons and kept in detention for five years, until his death in

1973. In 1983, the author moved for professional reasons to another town, where he lived

with an older cousin. After President Mobutu, on 24 April 1990, had announced the end of

the one-party system, the author joined the Union pour la démocratie et le progrès social

(UDPS), the opposition party. On 30 April 1990, the UDPS organized a peaceful

demonstration in Kinshasa, which was violently dispersed by the police. Many more clashes

between members of the opposition movement and government forces followed, and in June

1990, the author was arrested together with other demonstrators, after having participated

in a demonstration against the Government.

2.2 The author submits that he was kept in detention in a prison camp. He was allegedly ill

treated, beaten and threatened. After a month, the author was transferred to the military

offices in town. He then managed to escape with the help of a military officer, who was of

the same ethnic background as the author. After having been in hiding in a village, with

friends of his cousin, he boarded an Air Zaire plane for Rome, with a false passport which

had been furnished by his cousin. After arrival in Italy, he sent the passport back to his

cousin, as agreed. Some Africans in Rome helped him cross the border with Switzerland,

where he arrived in late August 1990.

2.3 Upon arrival in Switzerland, the author requested recognition as a refugee. In July 1992,

the Office fédéral des réfugiés rejected his request, because the demonstration of June

1990, during which the author allegedly was arrested, had never been reported; this gave rise

to doubts about the authenticity of the author's account. The author's appeal was rejected by

the Commission suisse de recours en matière d'asile et de renvoi in May 1994. The

Commission considered that the author's story had little credibility, given inter alia the fact

that he had not been able to describe in detail his place of detention and that he had not

furnished any documentary evidence in support of his personal claim. The author was

ordered to leave Switzerland before or on 30 August 1994, failing which he would be

returned to Zaire.

2.4 In January 1994, the author was joined by his daughter, who was born in Zaire in 1987.

In Switzerland, the author began a relationship with Ms. Y; a daughter was born in June

1994. Because of the birth, the expulsion was deferred to the end of September 1994.

The complaint:

3.1 The author argues that the political situation in Zaire has not improved and that President

Mobutu continues to terrorize the country. His family members still in Zaire have informed

him that the human rights situation in the country is bad and that there is practically no

political opposition left. The author submits that he fears for his security, and points out that

at least one asylum seeker, who had been returned by Belgium to Zaire in April 1990, had

been arrested upon return and beaten, and subsequently disappeared. The author also states

that his cousin has told him not to return to Zaire, because of the risks involved.

3.2 The author claims that his forced return to Zaire would be in violation of article 3 of the

Convention. In this context, he refers to the Committee's Views in communication No.

13/1993, Mutombo v. Switzerland, where the Committee concluded that a consistent pattern

of gross, flagrant or mass violations of human rights existed in Zaire. The author argues that

his family background as well as his personal experience as a political opponent in Zaire,

make it predictable that he will be arrested upon arrival in Zaire, and consequently be

subjected to maltreatment and torture. In this context, he submits that an article recently

published in Zaire attributed certain political opinions to him.

3.3 Pending the Committee's decision on the merits of his communication, the author

requests the Committee to request Switzerland, under rule 108, paragraph 9, of the

Committee's rules of procedure, not to implement the expulsion order against him.

3.4 It is stated that the same matter has not been submitted to any other procedure of

international investigation or settlement.

Issues and proceedings before the Committee:

4.1 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.

4.2 The Committee has examined the claims submitted by the author and observes that his

account lacks the minimum substantiation that would render the communication compatible

with article 22 of the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment.

5. The Committee against Torture therefore decides:

(a) that the communication is inadmissible;

(b) that this decision shall be communicated to the author and his counsel and, for

information, to the State party.

[Done in English, French, Russian and Spanish, the English text being the original version.]