CAT/C/19/D/45/1996

D. (name deleted) v. France, Communication No. 45/1996,

U.N. Doc. CAT/C/19/D/45/1996 (1997).

Communication No. 45/1996

Submitted by: D. (name deleted) (represented by AFIDRA)

Alleged victim: The author

State party: France

Date of communication: 13 December 1995

The Committee against Torture, established under article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 10 November 1997,

Adopts the following decision:

Decision on admissibility

1. The author of the communication is D., a citizen of the Democratic

Republic of the Congo (formerly Zaire), born on 25 May 1959, currently

residing in France. He is represented by the Association pour la formation,

l'insertion et le développement rural en Afrique (AFIDRA).

Facts submitted by the author

2. The Association states that D. is a member of the Union pour la

démocratie et le Progrès Social and participated in activities for that party in

Zaire, such as printing leaflets and posters. On 13 February 1990, he was

arrested by the Division Spéciale Présidentielle (Special Presidential

Division) on the grounds of a breach of public order. He was held for three

months in prison without being tried or brought before a judge, and was

subjected to ill-treatment by his prison warders. The author states that after

his family intervened he was provisionally released on 20 May 1990 and

told to report to the police once a month. However, in his request to the

Office Francais de Protection des réfugiés et Apatrides (French Office for

the Protection of Refugees and Stateless People) on 16 August 1990, D.

stated that he had escaped from prison on 20 May 1990, and a "wanted"

notice confirming this statement is enclosed by the author.

2.2 It is submitted that, following the massacres of students at Lubumbashi

in May 1990, D. was again suspected of printing leaflets, and decided to

leave the country with a false passport and visa. He entered France through

Belgium on 1 August 1990.

2.3 On 16 August 1990, D. filed a request for refugee status, which was

turned down by the Office Francais de Protection des Réfugiés et Apatrides

on 24 August 1990, on the grounds that the alleged facts and risk of

persecution were not sufficiently substantiated. His appeal was then rejected

by the Commission de Recours des Réfugiés (Commission of Appeal in

Refugee Matters) on 22 February 1991. As a result, his application for a

residence permit was refused by the police authorities of Paris on 2 May

1991, and D. was ordered to leave France by 2 June 1991. Despite this, he

apparently stayed in France.

2.4 On 15 July 1993, D. filed a further request on the grounds of his father's

alleged murder in Zaire on 10 July 1993, which was rejected by the Office

Francais des Réfugiés, et Apatrides. His appeal was again rejected on 17

December 1993 by Commission de Recours des Réfugiés, on the grounds

that there were no new facts, since he had stated that the political situation in

Zaire had not changed. It is submitted that D. was unable to file an appeal

against this decision with the Conseil d'Etat, because he was not provided

with legal aid.

2.5 Following an order of escort to the frontier (arrêté de reconduite à la

frontière), D. was arrested in 1994 during an identity check and kept for 48

hours in custody and 6 days in detention. He then had to be released because

there was no flight available for his deportation to Zaire. D. claims that he

only heard of the order of escort to the frontier when he was already under

arrest. In this connection, it is submitted that the order apparently had been

sent by registered mail, and that the French post office does not hand over

mail to foreigners without residence permits. It is further stated that no arrest

warrant was shown to D., although he had requested it in order to appeal

against his arrest. It is submitted that it was for that reason that D. was not

able to appeal against the order of escort to the frontier or against his arrest.

The complaint

3. D. says that he fears for his life if forced to return to the Democratic

Republic of the Congo.

State party's observations on the admissibility of the communication

4.1 By submission of 29 April 1997, the State party argues that the

communication is inadmissible because domestic remedies had not been

exhausted.

4.2 The State party explains that any foreigner whose appeal has been

definitively rejected by the Commission de Recours des Réfugiés is

requested to leave French territory within a month of being notified of the

decision. The decision is notified by registered letter with acknowledgement

of receipt delivered to the address given by the person concerned. If the

person is not at home when the postal official delivers the letter, a notice is

left at the address informing the person that the letter may be collected at the

post office indicated on the notice. According to the State party, the postal

administration, contrary to the author's allegations, usually hands over the

letter if the recipient can show proof of identity, and is not responsible for

judging the validity of the residence permit shown, with respect to its

expiry. The summons to leave the territory states that the person concerned

has 15 days to submit comments, especially regarding any risks he may be

exposed to in the event of returning to his country of origin.

4.3 The State party argues that several appeal procedures were available to

D., and that he did not use them. According to the State party, he was

entitled to submit an application for judicial review to the Conseil d'Etat

against the Commission's decisions of 28 February 1991 and 17 December

1993. Secondly, he could have requested the cancellation of the summons to

leave French territory before the administrative court.

4.4 Lastly, the State party points out that D. did not appeal against the order

of escort to the frontier dated 25 November 1991. The State party says that

the law allows a specific appeal against orders of escort to the frontier to be

lodged before the judge for escort to the frontier of the administrative court

with territorial jurisdiction. Such appeal must be lodged within 24 hours of

the order being notified. On hearing the appeal, the judge has 48 hours to

issue a ruling, during which time proceedings are suspended. When the

appeal has been submitted, the judge must, where appropriate, entertain the

complaint that the person concerned runs the risk of being subjected to

torture or to inhuman and degrading treatment in the event of a return to the

country of origin, in conformity either with international rules, or with rules

of domestic law.

The author's comments

5.1 In his comments on the State party's observations, the author alleges that

many post offices will not hand over registered mail to persons without a

residence permit who show only a passport or a residence permit which has

expired, even though they have no legal authority to decide whether a

residence permit is valid or not. According to the author, some post offices

even go so far as to call the police if a foreigner appears without a residence

permit.

5.2 As for the appeal for judicial review, the author explains that this appeal

is admissible only on legal grounds, and must be submitted by a lawyer. The

author also maintains that decisions of the Conseil d'Etat suffer considerable

delays and do not have the effect of suspending proceedings.

5.3 With regard to the order of escort to the frontier, the author claims that

he never received the summons and was first acquainted with it only when

questioned by police. He claims that by the time he had been informed by

the police, it was too late to appeal, since appeals have to be lodged within

24 hours of notification.

Issues and proceedings before the Committee

6.1 Before considering any claim in a communication, the Committee

against Torture must decide whether or not it is admissible under article 22

of the Convention.

6.2 Article 22, paragraph 5 (b), of the Convention precludes the Committee

from considering any communication unless it has ascertained that all

available domestic remedies have been exhausted. That rule does not apply,

however, if it is established that remedies have been or might be

unreasonably prolonged or that they are unlikely to bring effective relief to

the alleged victim. In the present case, the author acknowledged that he had

not exhausted all available remedies provided for under French law –before

the Conseil d'Etat against the decision of the Commission de Recours des

Réfugiés, before the administrative court against the order to leave the

territory, or before the administrative tribunal against the order of escort to

the frontier. The reasons given by the author do not show that such appeals

were unlikely to succeed. The Committee therefore finds that the conditions

stipulated in article 22, paragraph 5 (b), of the Convention have not been

met.

7. The Committee therefore decides:

(a) That the communication is inadmissible;

(b) That this decision shall be notified to the author of the communication

and to the State party.

[Done in French (original version), and translated into English, Spanish and

Russian.]