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CAT/C/83/D/1069/2021

Z v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2025-11-14 · en CH

Inadmissibility decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.25-20269 (E) 090126 090126

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1069/2021*, **

Communication submitted by:

Z (represented by counsel, Alfred Ngoyi Wa

Mwanza)

Alleged victim:

The complainant

State Party:

Switzerland

Date of complaint:

12 April 2021 (initial submission)

Document references:

Decision taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State Party on 15 April 2021 (not issued in

document form)

Date of adoption of decision:

14 November 2025

Subject matter:

Deportation to the Democratic Republic of the

Congo

Procedural issues:

None

Substantive issue:

Risk of torture or other cruel, inhuman or

degrading treatment or punishment if deported to

country of origin (non-refoulement)

Article of the Convention:

3

1.1

The complainant is Z, a national of the Democratic Republic of the Congo born in

1969. He has filed several applications for asylum in Switzerland, but they have been denied.

He is facing deportation to the Democratic Republic of the Congo and claims that his

expulsion would constitute a violation by the State Party of article 3 of the Convention. The

State Party made the declaration under article 22 (1) of the Convention on 2 December 1986.

The complainant is represented by counsel.

1.2

On 15 April 2021, pursuant to rule 114 of its rules of procedure, the Committee, acting

through its rapporteur on new complaints and interim measures, requested the State Party to

refrain from deporting the complainant to the Democratic Republic of the Congo while his

complaint was being considered.

1.3

On 20 April 2021, the State Party informed the Committee that, in accordance with

its established procedure, the State Secretariat for Migration had requested the competent

authority to refrain from taking any steps to deport the complainant, who was therefore

* Adopted by the Committee at its eighty-third session (10–28 November 2025).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,

Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.

United Nations

CAT/C/83/D/1069/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

6 January 2026

English

Original: French

CAT/C/83/D/1069/2021

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assured of remaining in Switzerland pending the consideration of his complaint by the

Committee.

Factual background

2.1

The complainant entered Switzerland on 27 October 20031 and filed an initial asylum

application on the same day, which resulted in a decision issued on 17 February 2004 to

refuse asylum and order his removal.2 This decision entered into force following a ruling

issued by the Federal Administrative Court on 17 April 2004. Subsequently, the complainant

filed a second asylum application dated 11 April 2011, six applications for re-examination,

the last of which was filed on 14 December 2018, and an application for review, all of which

were rejected.3

2.2

On 8 July 2009, the complainant filed a complaint with the Committee claiming that

his rights under article 3 of the Convention would be violated by the State Party if he were

returned to his country, where he faced a risk of persecution. On 1 May 2014, the Committee

struck that communication off the list of cases because the complainant had not made contact

with the Committee since filing the complaint.4 On 23 March 2016, the complainant again

appealed to the Committee, arguing that his forced repatriation would constitute a violation

of article 3 of the Convention because he had been active in the Alliance des patriotes pour

la refondation du Congo (APARECO) since 2010. On 9 August 2018, the Committee found

that the complainant had not demonstrated that he would face a foreseeable and real risk of

being subjected to torture if returned to the Democratic Republic of the Congo.5

2.3

On 18 September 2020, the complainant filed a third asylum application. He was

interviewed by the State Secretariat for Migration on 9 November 2020. The complainant

stated that, since 2010, he had been a member of APARECO, which was based in Paris. In

January 2018, during an online meeting of the movement’s leaders, the complainant put

forward a proposal: as 2018 was an election year, he suggested mobilizing people to prevent

the election from taking place and to resist and oust the incumbent leaders. The president of

APARECO agreed that this was a good idea and instructed the complainant to contact

members of opposition groups in Kinshasa. The complainant did so, but the person he

contacted in Kinshasa – M.O. – was subsequently arrested by the police, who thereby learned

of the support lent by the complainant. Consequently, on 15 March 2019, the complainant

was sentenced in absentia to 5 years’ imprisonment. In support of his asylum application, the

complainant produced a certified copy, dated 20 September 2019, of a judgment of the

magistrates’ court dated 15 March 2019, notification of which had been sent to his home in

Kinshasa on 3 January 2020.

2.4

On 18 November 2020, the State Secretariat for Migration denied the complainant’s

asylum application on the basis that his claims were implausible. Firstly, the State Secretariat

noted that the complainant’s vague and stereotypical statements did not provide convincing

evidence of leadership activity within APARECO. While the complainant claimed to be the

head of the movement in the canton of Zurich and the temporary head in Switzerland, he was

unable to give a precise account of his role or of that of other members of APARECO. He

simply mentioned that he coordinated and organized demonstrations. Secondly, he was

unable to give details of the meetings held in Switzerland once a month and could not say

how many people took part in the meetings in Switzerland, with his answer fluctuating

between “many” and a “select group”. As for the demonstrations in Switzerland, the

complainant mentioned three, without being able to give many details about them aside from

where they took place.

2.5

The State Secretariat for Migration then considered the complainant’s claims

regarding his collaboration with M.O., to whom he had allegedly sent WhatsApp messages,

videos and instructions. The State Secretariat noted that the complainant failed to provide

any convincing details about M.O., such as how he had met him, what his occupation was or

1 No further details provided.

2 No further details provided.

3 No further details provided.

4 The complainant was not represented by counsel.

5 Z v. Switzerland (CAT/C/64/D/738/2016 and Corr.1), para. 8.

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why he was the ideal person to mobilize the opposition in Kinshasa. Nor did the complainant

explain how the Congolese authorities had discovered that M.O. was an opponent of the

regime and a member of APARECO. Moreover, the complainant was unable to explain

precisely who the president of APARECO was, aside from giving his own name, or what

activities APARECO undertook in the Democratic Republic of the Congo.

2.6

With regard to the complainant’s conviction by the Congolese courts, the State

Secretariat for Migration considered that it was not credible that M.O. had appeared before a

magistrates’ court, given that the complainant had stated that M.O. was not entitled to a legal

representative, without explaining why, and given that the complainant was unable to explain

why he knew nothing about the proceedings that had taken place in June 2018 until the

judgment was served in January 2020. The State Secretariat noted with surprise that the

Congolese authorities should logically have sought to arrest the complainant before the

proceedings and not, as the complainant claims, after the judgment had been issued. Lastly,

the complainant claimed that the authorities had searched for him on several occasions but

was unable to provide any detailed information about this. In the view of the State Secretariat,

if the Congolese security services had been interested in the complainant, it seems unlikely

that they would have been unaware that he had been out of the Democratic Republic of the

Congo since 2003 and that they would have attempted to arrest him at his home 17 years after

his departure.

2.7

The State Secretariat for Migration also examined the document produced by the

complainant, which was a copy, and noted that, in the Democratic Republic of the Congo,

such documents could clearly be acquired illegally without much trouble; consequently, the

probative value of the document must be considered extremely low. The State Secretariat

expressed surprise that the judgment issued by the magistrates’ court contains no precise

information about the charges that the criminal justice authorities were bringing against the

complainant, mentioning only “false rumours” and an “attack on the security of the State”. It

would have expected such a judgment to deal much more fully with the allegations made

against the complainant.

2.8

The complainant lodged an appeal and requested, among other things, partial legal

aid. He also produced an article from Le Baromètre newspaper, dated 19 January 2021,

concerning M.O.’s conviction and detention.

2.9

In an interim ruling issued on 2 February 2021, the Federal Administrative Court first

found that the complainant’s indigence had not been proved, and then reiterated that the

application for legal aid would be accepted only if it appeared that the chances of success of

the appeal were greater, or not much lower, than those of its being rejected. The Court

therefore made an early and summary assessment of the evidence to determine what the likely

outcome of the proceedings might be, without, however, conducting a kind of preliminary

trial. In particular, it noted, after an initial reading of the “certified copy” of the alleged

judgment of the Congolese magistrates’ court, that the State Secretariat for Migration was

justified in denying that it had any decisive probative value based on an early assessment.

This was due both to its content (an a priori extremely concise description of the acts with

which the complainant was allegedly charged and the stages of the criminal proceedings, the

seemingly scarce and vague references to the legal provisions allegedly applied, and the fact

that the costs of the proceedings were charged to the complainant but were not specified) as

well as to its form (the judgment was written on only four sheets of paper, the seals of the

authority were illegible and it contained typing errors). In these circumstances, the Federal

Administrative Court concluded that the State Secretariat was a priori not required to carry

out any further investigations in relation to this document.

2.10

As for the article concerning M.O., the Court ruled that it had been written for the

purposes of the current proceedings for the following reasons: the article’s date of

publication, the unprofessional layout of the headline and the niche nature of the publication,

which describes itself as an “independent weekly fighting for the promotion of democracy”.

Lastly, given that these were the third asylum proceedings, and that proceedings had

repeatedly been brought before appeal authorities dealing with asylum, and given the a priori

futile nature of the arguments set out in the appeal, the Court considered that the

complainant’s exercise of the right to appeal amounted, in this case, to a vexatious and

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abusive act. It therefore asked the applicant to pay an advance of 1,000 Swiss francs (SwF)

towards the cost of the proceedings.

2.11

On 16 February 2021, the complainant requested the Federal Administrative Court to

reconsider its decision of 2 February 2021 and to waive the required advance payment of

costs, arguing that his indigence was beyond doubt and reiterating several points raised in his

appeal. In support of his claim, he produced a “release slip” from the Federal Asylum Centre,

purporting to corroborate his indigence.6

2.12

In a decision issued on 26 February 2021, the Federal Administrative Court declared

the claimant’s appeal inadmissible on grounds of failure to pay the advance costs. The Court

noted that the “release slip” produced by the complainant, even supposing that it proved his

indigence, was not of such nature as to give rise to a reconsideration of the interim ruling,

since the ruling was based both on the demonstration of the complainant’s indigence and on

the appeal’s lack of prospects of success. In any event, the complainant had been duly advised

that, given the status of the case, and in the absence of any significant new facts, the Court

would not consider a new application for legal aid, or a request for a reduction in the amount

of the advance costs, or any other request for an extension of the time limit for payment, and

that it would declare his appeal inadmissible.

Complaint

3.1

The complainant claims that his deportation to the Democratic Republic of the Congo

would constitute a violation of his rights under article 3 of the Convention. He claims that if

he is returned, he will have to serve his 5-year sentence in inhuman conditions, as is the case

with M.O., who has still not been released.

3.2

The complainant believes that the Swiss authorities should have taken the Congolese

judgment into account and accepted it as valid in the absence of any evidence of manipulation

or any scientific assessment casting doubt on its authenticity. With regard to the Swiss

authorities’ doubts about the authenticity of the judgment, the complainant argues that the

formal errors identified are characteristic of the Democratic Republic of the Congo, where

administrative processes are subject to shortcomings. The complainant explains that the

difference between the new asylum procedure and the previous ones is that he has recently

been convicted of a criminal offence, for which he was sentenced to 5 years’ imprisonment

for political activities conducted from Switzerland, especially those that began in 2018 with

a view to inciting a popular uprising. The complainant also states that the Swiss authorities

have not taken into account the article concerning M.O., who is still being held in detention

in difficult conditions, despite the relevance of the article.

3.3

The complainant denounces the fact that, despite his indigence, he was ordered to pay

an advance of SwF 1,000 towards the cost of the proceedings7 in order for the Federal

Administrative Court, as the final court of appeal, to rule on his appeal, which runs counter

to the procedural guarantees of the right to be heard and the right to a fair trial. Lastly, the

complainant refers to the human rights situation in the Democratic Republic of the Congo

and considers that, in view of his rather unusual profile, he must be seen as an undesirable

person by the current Congolese authorities and leaders.

State Party’s observations on the merits

4.1

On 7 December 2021, the State Party submitted its observations on the merits,

reiterating the arguments made by the Swiss asylum authorities. It notes the complainant’s

claim that the demand made by the Federal Administrative Court that he should pay an

advance of SwF 1,000 in costs, despite proof of his indigence, deprived him of the procedural

guarantees of the right to be heard and the right to a fair trial. Aside from the fact that these

provisions are not relevant to the present case, the State Party points out that, in its interim

ruling of 2 February 2021, the Court based its decision, firstly, on the fact that the

complainant had not demonstrated his indigence and, secondly, on the fact that his appeal

had no chance of success. In the request that he submitted on 16 February 2021, the

6 Not in the case file.

7 He refers to the case of M.G. v. Switzerland (CAT/C/65/D/811/2017 and Corr.1), para. 7.4.

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complainant expressed his views on these two points. The Court’s finding of inadmissibility

expressly reconsiders the arguments put forward by the complainant, in both the findings of

fact and the legal considerations. It should also be noted that, contrary to the complainant’s

claims, the Federal Administrative Court duly took into account, during the appeal

proceedings, both the judgment of 15 March 2019 and the supposed evidence of the

complainant’s political activities in Switzerland.

4.2

The State Party acknowledges that the human rights situation in the Democratic

Republic of the Congo is a cause for concern in many respects but argues that the overall

situation is not sufficient to conclude that the complainant would be at risk of being subjected

to torture if he returned to his country. It also notes that the complainant has never claimed

to have been subjected to torture or ill-treatment in the past.

4.3

With regard to the complainant’s political activities, the State Party recalls that the

Committee considered, in its decision of 9 August 2018, that the complainant’s activities

within APARECO did not entail a level of political exposure that would attract the interest

of the Congolese authorities, since these authorities were focusing on activities that went

beyond involvement in the political rank and file and marked out the persons undertaking

them as serious and potentially dangerous opponents. The Committee noted that the

complainant’s activities could not be considered to pose a real and serious threat to the

Government of the Democratic Republic of the Congo. 8 In the State Party’s view, the

complainant’s new claims do not alter this assessment.

4.4

Thus, the State Party reiterates the arguments of the domestic courts regarding the

complainant’s political activities and the evidence produced by him. In particular, the State

Party notes that, in the alleged judgment of the Congolese authorities, while the first page

indicates that the proceedings are directed against the complainant and M.O., the part

detailing the charges and the operative part concern only the complainant, which is yet

another reason to conclude that the judgment is manifestly a forgery, drawn up for the

purposes of the proceedings brought by the complainant in Switzerland. The State Party also

points out that it is inconsistent for the complainant, who claims to have been informed of

his conviction in January 2020, to have waited until September 2020 to file his third

application for asylum.

4.5

On 15 April 2024, the State Party informed the Committee that, on 6 April 2023, the

complainant had submitted a new application for re-examination to the State Secretariat for

Migration, citing his deteriorating mental state. 9 The State Secretariat declared the

application inadmissible by decision of 25 January 2024. The State Secretariat noted that, in

the complainant’s sixth application for re-examination, submitted on 12 December 2018, he

had already raised the issue of his state of health, based on a medical report dated 11 April

2019, and that no new grounds were therefore cited in the new application. On 1 February

2024, the complainant filed an appeal against this decision with the Federal Administrative

Court. By decision of 29 February 2024, the Court declared his appeal inadmissible on

grounds of non-payment of procedural costs.

Complainant’s comments on the State Party’s observations

5.

On 14 February 2025, the complainant submitted his comments. He reiterated the

arguments set out in his initial request and added that he would face a risk of being subjected

to torture and inhuman and degrading treatment if he was returned to the Democratic

Republic of the Congo as there is currently a war in the east of the country. He claims that,

following the seizure of several towns in the east of the country, a dictatorship has taken

power in the Democratic Republic of the Congo, leading to the repression of Congolese

citizens whose views are at odds with those of the Government.

8 Z v. Switzerland, para. 7.5.

9 He produced a medical report dated 17 March 2023, diagnosing post-traumatic stress disorder and

severe depression with psychotic symptoms.

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Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (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.

6.2

In accordance with article 22 (5) (b) of the Convention, the Committee shall not

consider any communication from an individual unless it has ascertained that the individual

has exhausted all available domestic remedies. The Committee notes that, in the present case,

the State Party has not contested that the complainant has exhausted all available domestic

remedies, nor has it contested the admissibility of the complaint. The Committee therefore

finds that it is not precluded from considering the communication under article 22 (5) (b) of

the Convention.

6.3

The Committee notes the complainant’s claim that the State Party would violate his

rights under article 3 of the Convention by returning him to the Democratic Republic of the

Congo. The Committee recalls that, for a communication to be admissible under article 22 of

the Convention and rule 113 (b) of its rules of procedure, it must, inter alia, rise to the basic

level of substantiation required for purposes of admissibility. 10 In cases involving

refoulement, complainants must present an arguable case by submitting substantiated

arguments to demonstrate that the danger of being subjected to torture upon removal is

foreseeable, present, personal and real.11 In other words, they must establish a prima facie

case by providing evidence that rises to the basic level of substantiation to support their

claims.12 Extraterritorial claims relating to article 16 of the Convention could fall within the

scope of a State Party’s non-refoulement obligation under article 3 of the Convention if the

ill-treatment that a person facing deportation risks experiencing could likely change so as to

constitute torture.13

6.4

The Committee further recalls that it is for the courts of the States Parties to the

Convention, and not for the Committee, to evaluate the facts and evidence in a particular

case, unless it can be ascertained that the manner in which such facts and evidence were

evaluated was clearly arbitrary or amounted to a denial of justice.14 The Committee gives

considerable weight to findings of fact made by organs of the State Party concerned; 15

however, it is not bound by such findings. It follows that the Committee will make a free

assessment of the information available to it in accordance with article 22 (4) of the

Convention, taking into account all the circumstances relevant to each case.16

6.5

In the present case, the Committee notes that, since 2003, over the course of several

asylum proceedings, the State Party’s immigration and judicial authorities have carefully

examined the facts and evidence presented by the complainant and found that certain aspects

of his account were not credible and that he did not have a political profile likely to attract

the attention of the Congolese authorities. The Committee has also had occasion to examine

a complaint by the complainant, again based on his political activity within APARECO, and

found that his political involvement in Switzerland did not constitute an activity that might

be considered a real and serious threat to the current Government of the Democratic Republic

of the Congo.17 On this basis, both the Swiss authorities, over the course of several asylum

10 For example, Y.H. v. Sweden (CAT/C/76/D/979/2020), para. 7.4.

11 Committee against Torture, general comment No. 4 (2017), para. 38.

12 S.S. v. Australia (CAT/C/74/D/935/2019), para. 7.6.

13 Committee against Torture, general comment No. 4 (2017), para. 16.

14 G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; Z.S. v. Georgia (CAT/C/70/D/915/2019),

para. 7.4; and S.K. v. Australia (CAT/C/73/D/968/2019), para. 12.5.

15 For example, T.D. v. Switzerland (CAT/C/46/D/375/2009), para. 8.7; and Alp v. Denmark

(CAT/C/52/D/466/2011), para. 8.3.

16 For example, I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.4. See also Committee against

Torture, general comment no. 4 (2017), para. 50.

17 Z v. Switzerland, para. 7.5.

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proceedings, and the Committee concluded that the complainant had not established the

existence of substantial grounds to show that he would face a foreseeable, present, personal

and real risk of being tortured if returned to the Democratic Republic of the Congo.

6.6

The Committee also notes that the complainant contests the assessment made by the

State Party’s authorities of his credibility and of the alleged Congolese judgment that he

produced. It observes, however, that the authorities of the State Party found, after a thorough

assessment of all the facts and evidence presented at different levels of jurisdiction since

2003, including during several review proceedings, that the complainant had not provided

sufficient evidence that he ran a foreseeable, real and personal risk of being subjected to

torture if returned to the Democratic Republic of the Congo.

6.7

In particular, the Committee notes that the Swiss authorities analysed the copy of the

Congolese judgment produced by the complainant and assessed its probative value. The

Committee also notes that the complainant has not explained – either to the Committee or to

the Swiss authorities – why he was unable to produce the original of this judgment, even

though the “certified copy” produced was supposed to be in conformity with the original.

Lastly, the Committee notes that the complainant has not produced any evidence to prove his

indigence in his communication, although the Swiss authorities did not appear to dispute it.

Therefore, the Committee finds that the communication does not establish that the domestic

evaluation of the facts and evidence concerning the complainant’s alleged risk of treatment

contrary to the Convention upon return to the Democratic Republic of the Congo suffered

from any defects.18

6.8

The Committee recalls its earlier decisions in which it found claims to be manifestly

unfounded where the author of a communication failed to submit substantiated arguments

showing that the danger of being subjected to torture was foreseeable, present, personal and

real. In the light of the above, and in the absence of any further relevant information, the

Committee concludes that the complainant has failed to substantiate his claims sufficiently

for the purpose of admissibility.19

7.

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (2) of the Convention;

(b)

That the present decision shall be communicated to the complainant and to the

State Party.

18 S.K. v. Australia, para. 12.5.

19 Ibid., para. 12.6.