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
2
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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.