Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 943/2019 * , **

Communication submitted by:A.L. (represented by counsel, Ange Sankieme Lusanga)

Alleged victim:The complainant

State party:Switzerland

Date of complaint:24 June 2019 (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 24 July 2020 (not issued in document form)

Date of adoption of decision:19 April 2024

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 if deported to country of origin

Articles of the Convention:3, 14 and 16

1.1The complainant is A.L., a national of the Democratic Republic of the Congo born in 1994 in Kinshasa. He is facing deportation to the Democratic Republic of the Congo and is of the view that his return, without consideration having been given to his state of health, would constitute a violation by the State party of article 3, read in conjunction with articles 14 and 16, of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 2 December 1986. The complainant is represented by counsel.

1.2On 22 July 2019, the Committee, acting through its Rapporteur on new complaints and interim measures, decided not to accede to the complainant’s request for interim measures.

Factual background

2.1The complainant maintains that he has no close relatives in the Democratic Republic of the Congo and that his father and mother were killed during demonstrations organized by the Catholic Church. He claims to have been a victim of torture in the Democratic Republic of the Congo. He arrived at Geneva Airport on 10 April 2019 and applied for asylum in Switzerland on the same day. On 11 April 2019, the State Secretariat for Migration rejected the complainant’s asylum application. He was ordered to remain in the transit zone at Geneva Airport, pursuant to article 22 of the Asylum Act (No. 142.31 of 26 June 1998). On 24 April 2019, the complainant appealed against the State Secretariat’s decision. On the same day, the State Secretariat provisionally suspended his deportation and granted him access to the documents in his file for the first time. On 30 April 2019, the State Secretariat rejected the complainant’s appeal. He did not appeal against this decision, which became final.

2.2On 9 June 2019, the complainant was placed in administrative detention with a view to his deportation, although he was very ill and had not been examined by a specialist despite his counsel’s having warned numerous times that that was necessary. In violation of Swiss law, the Police Commissioner for the Canton of Geneva ordered the complainant’s detention, when such a step should first be proposed by the Office for Civil Registration and Migration. The complainant states that he was arrested while his asylum proceedings were pending before the Federal Administrative Court, which had suspended his deportation. Although the 60-day period during which he was to remain in the Geneva Airport transit zone was set to expire on 10 June 2019, the complainant’s counsel and the State Secretariat for Migration agreed that he would be transferred to the federal asylum centre in Boudry, pending the Court’s judgment and the remainder of the proceedings.

Complaint

3.1The complainant alleges that, if he were deported to the Democratic Republic of the Congo, where he risks being subjected to torture and other inhuman or degrading treatment, the State party would be in violation of its obligations under article 3 of the Convention. He adds that, if the State party refused to provide him with medical treatment and aftercare in Switzerland, it would also be violating his rights under articles 14 and 16, read in conjunction with article 3, of the Convention.

3.2The complainant asserts that he has exhausted all available domestic remedies and that his complaint has not been submitted for examination under another procedure of international investigation or settlement.

State party’s observations on the merits

4.1On 16 January 2020, the State party submitted its observations on the merits of the complaint. It first recalls the facts and the proceedings before the Swiss authorities and courts, including several stages of the asylum proceedings not mentioned by the complainant. The State party points out that, on 26 May 2019, the complainant appealed against the decision to refuse him entry to Switzerland and that the Federal Administrative Court rejected this appeal in a judgment of 29 May 2019. On 3 June 2019, the State Secretariat for Migration dismissed an application for re-examination of its negative decision concerning the complainant’s asylum application, which he had submitted on 24 May 2019. The State Secretariat noted that the complainant’s new claim – that he had engaged in sexual relations with a white man in exchange for his transportation – was not supported by concrete evidence. It also stated that the complainant’s chlamydial infection, which had been discovered during the course of the proceedings, was being treated in Switzerland and that the complainant could apply for medical return assistance, if he so wished. On 4 June 2019, the complainant submitted an appeal against the State Secretariat’s decision of 3 June 2019 to the Federal Administrative Court. In a judgment of 19 June 2019, the Court dismissed the appeal, finding that none of the information provided in the application for re-examination was new.

4.2On 26 June 2019, the complainant filed a second asylum application, which the State Secretariat for Migration dismissed without a formal decision, since the complainant relied on the same grounds as in his first application. On 4 July 2019, the complainant appealed to the Federal Administrative Court on the grounds of denial of justice. On 10 July 2019, the Court upheld the decision to dismiss the case without a formal decision. On 12 July 2019, the complainant applied for a review of the Court’s judgment of 10 July 2019, on the basis that the president of the panel and the clerk of the Court had been members of the panel that had rendered the Court’s judgment of 19 June 2019. The Court dismissed the application for review, rejecting the grounds cited by the complainant. On 31 July 2019, the complainant filed a third asylum application, which the State Secretariat rejected because none of the information provided was new. On 21 August 2019, the Court dismissed the complainant’s appeal, dated 19 August 2019, against the rejection of his most recent asylum application without entering into the substance of the case.

4.3The State party notes that, under article 3 of the Convention, no State party may expel, return (refouler) or extradite 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. For the purpose of determining whether there are such grounds, the competent authorities must take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

4.4The State party notes that the Committee has reified the provisions of article 3 in its jurisprudence and issued specific guidelines on the implementation of this article in its general comment No. 4 (2017), paragraph 38 of which states that a complainant must show that the danger of being subjected to torture in the event of an expulsion to his or her country of origin is foreseeable, present, personal and real. Moreover, the existence of such a risk must appear substantial, which is the case when the relevant claims are based on credible facts. The factors that must be taken into account in order to conclude that such a danger exists include: evidence of a consistent pattern of gross, flagrant or mass violations of human rights in the State concerned; acts of torture or ill-treatment committed by a public official in the recent past; the existence of evidence from independent sources to support the allegations of torture or ill-treatment and the possibility of access to that evidence; allegations of torture or ill-treatment that may have been inflicted on the complainant, or on his or her next of kin, as a result of the proceedings before the Committee; political activity carried out by the complainant within or outside the country of origin; and any evidence as to the credibility of the complainant and the overall veracity of his or her allegations, despite certain inconsistencies in the presentation of the facts or lapses of memory.

4.5The State party notes that the Committee must take into account all relevant considerations, in accordance with article 3 (2) of the Convention, including the existence of a consistent pattern of violations of the complainant’s rights by the State. It must thus be determined whether the complainant faces a “personal” danger of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a pattern of human rights violations does not constitute sufficient reason for determining that a person is in danger of being subjected to torture upon return to his or her country. There must therefore be additional reasons to conclude that the danger of being subjected to torture is “foreseeable, present, personal and real”.

4.6The State party considers a very large proportion of the communication to be devoted to the complainant’s administrative detention in Switzerland and, in particular, to the related proceedings. In the State party’s view, such matters bear no relation to the complaint before the Committee. The State party points out that the complainant has merely referred in general terms to the applicable provisions of the Convention, pointed to procedural irregularities in the domestic proceedings and mentioned his state of health, without making any specific references to his situation as an asylum-seeker. Consequently, the State party believes that the complainant has not adduced evidence that he would face a foreseeable, real and personal risk of being subjected to torture if he were deported to the Democratic Republic of the Congo.

4.7The State party notes that the torture or ill-treatment to which a complainant claims to have been subjected in the past is a factor to be considered when assessing the person’s risk of being subjected to torture or ill-treatment again in the event of his or her return to his or her country. The State party emphasizes that the complainant does not allege that he was subjected to torture or ill-treatment in the past. Nor does he claim to have illegally fled his country of origin because of threats of torture.

4.8The State party points out that the complainant did not declare that he had engaged in any political activities, inside or outside his State of origin, or that he had experienced any problems with the Congolese authorities.

4.9The State party emphasizes that the complainant’s statements are inconsistent in several respects. It recalls that, in its decision of 30 April 2019, the State Secretariat for Migration rejected the grounds for asylum presented by the complainant, as he had offered an implausible account. The State party also points out that the State Secretariat identified contradictions related to central elements of the asylum application. It further stresses that, in his communication, the complainant does not criticize the State Secretariat’s negative decision, against which he did not appeal. The State party underscores that the complainant raised the homosexual relationship only at the time of his application for re-examination, in other words after the initial asylum proceedings had concluded. Moreover, the State party takes the view that the claim should not be taken into account, since the complainant did not produce any evidence of the relationship’s genuineness, its nature or its potential effects on the reasons for his departure. With regard to the complainant’s allegation that he was denied access to medical treatment, the State party points out that his illness was treated as soon as it was discovered and that he has the possibility of applying for medical return assistance. It adds that the severity of the complainant’s illness was not such as to meet the threshold for the application of article 3 of the Convention and that the complainant himself, during the hearing of 24 April 2019, had stated that he was feeling better.

4.10With regard to the documents submitted in connection with the complainant’s third asylum application, the State party concurs with the conclusions of the State Secretariat for Migration and the Federal Administrative Court, which found that the application was based on the same grounds as those already put forward in the previous proceedings. The State Secretariat found that the complainant had failed to explain how the laissez-passer he had submitted demonstrated that he would be at risk if deported to the Democratic Republic of the Congo. The Court held, in its judgment of 21 August 2019, that a handwritten note on the laissez-passer offered no guarantee as to its content or its signatory and that the photograph of a summons submitted by the complainant could not be assessed because of, inter alia, the manner in which the document had been produced.

4.11The State party emphasizes that the complaints of procedural irregularities in the handling by the State Secretariat for Migration of the complainant’s asylum application were thoroughly examined by the Federal Administrative Court in its judgment of 19 June 2019. It also underscores that the State Secretariat dismissed those complaints, noting in particular that the complainant and his counsel had signed the hearing reports without comment; that his counsel had failed to comment on the draft asylum decision when invited to do so; and that no appeal against the asylum decision of 30 April 2019 had been lodged.

4.12With regard to the complainant’s allegation that he did not have access to the documents in the case file prior to the application for re-examination of 24 May 2019, the State party recalls that, when the State Secretariat for Migration ordered the complainant to remain at Geneva Airport, he was informed of the possibilities for obtaining legal assistance. The State party holds that, since the complainant had been notified of the rejection decision of 30 April 2019, it was his responsibility to take the necessary steps to lodge any appeal. Having failed to do so, he cannot base the complaint made in the communication on that claim.

4.13Consequently, the State party believes that there is nothing specific in the case file or the communication to lend credence to the claim that the complainant would face a foreseeable, personal and real risk of being subjected to torture within the meaning of article 3 of the Convention if he were returned to the Democratic Republic of the Congo. The State party therefore invites the Committee to find that the complainant’s deportation to the Democratic Republic of the Congo would not constitute a violation of the international obligations of Switzerland under article 3 of the Convention.

Complainant’s comments on the State party’s observations

5.On 9 August 2023, the complainant submitted his comments on the State party’s observations. He states that several Congolese nationals have been expelled from Switzerland without the slightest respect for the human rights set out in treaties and other international legal instruments. In additional comments, dated 10 August 2023, the complainant’s counsel submitted to the Committee a laissez-passer which, according to him, proves that the complainant would risk being arrested upon his arrival in Kinshasa. He maintains that the State party failed, in violation of article 3 of the Convention, to inform him of the complainant’s forced return.

State party’s additional observations

6.On 14 August 2023, the State party responded that none of the arguments put forward by the complainant was such as to invalidate the national authorities’ assessment and that his allegations had not been substantiated.

Issues and proceedings before the Committee

Consideration of admissibility

7.1Before 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.

7.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. The Committee notes, first, that the dismissal of the complainant’s appeals has rendered the rejection of his application for asylum final and, second, that the State party has not contested the admissibility of the complaint. The Committee therefore finds that it is not precluded by article 22 (5) (b) of the Convention from considering the communication.

7.3As the Committee finds no further obstacles to admissibility, it declares the communication admissible and proceeds to consider it on the merits.

Consideration of the merits

8.1The Committee has considered the communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

8.2In the present case, the issue before the Committee is whether the return of the complainant to the Democratic Republic of the Congo would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (refouler) 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 or other cruel, inhuman or degrading treatment or punishment. The Committee must also determine whether the complainant’s allegations under articles 14 and 16 of the Convention are well founded.

8.3The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture if he were deported to the Democratic Republic of the Congo. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim of such determination is to establish whether the individual concerned would be personally at a foreseeable and real risk of being subjected to torture in the country to which he or she would be returned. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not, as such, constitute sufficient reason for determining that a particular person would be in danger of being subjected to torture upon return to that country; additional grounds must be adduced to show that the individual concerned would be personally at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

8.4The Committee recalls its general comment No. 4 (2017), which states, first, that the non-refoulement obligation exists whenever there are “substantial grounds” for believing that the person concerned would be in danger of being subjected to torture in a State to which he or she is facing deportation, either as an individual or as a member of a group which may be at risk of being tortured in the State of destination and, second, that the Committee’s practice has been to determine that “substantial grounds” exist whenever the risk is “foreseeable, personal, present and real”. The Committee further recalls that the burden of proof is on the complainant, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, personal, present and real. However, when the complainant is in a situation where he or she cannot elaborate on his or her case, the burden of proof is reversed and the State party concerned must investigate the allegations and verify the information on which the communication is based. The Committee gives considerable weight to findings of fact made by organs of the State party concerned; however, it is not bound by such findings, as it can 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.

8.5The Committee notes the complainant’s argument that his deportation to the Democratic Republic of the Congo would be in violation of article 3 of the Convention. It also notes the State party’s argument that the complainant based his communication principally on his administrative detention in Switzerland and on the related proceedings, which bear no relation to the claim before the Committee concerning the risk that he would run in the Democratic Republic of the Congo as an asylum-seeker.

8.6The Committee nonetheless recalls that the existence of human rights violations in a complainant’s country of origin is not, in itself, sufficient for it to conclude that he or she runs a personal risk of being tortured. Therefore, the mere fact that human rights violations occur in the Democratic Republic of the Congo is not, in itself, sufficient to conclude that the complainant’s deportation to that country would constitute a violation of article 3 of the Convention. The Committee notes the complainant’s argument that he has no close relatives in the Democratic Republic of the Congo, that his father and mother were killed during demonstrations organized by the Catholic Church and that returning to the Democratic Republic of the Congo would be detrimental to him. It also notes the State party’s argument that the complainant has not demonstrated that he would run a foreseeable, present, personal and real risk if he were returned to the Democratic Republic of the Congo.

8.7The Committee notes that the complainant has not proved that he had problems with the Congolese authorities or that he engaged in political activities of sufficient importance to attract the interest of the authorities in his country of origin and concludes that the information provided does not show that he would be personally at risk of torture or inhuman or degrading treatment if he were to return to the Democratic Republic of the Congo.

8.8The Committee notes that the torture or ill-treatment to which a complainant claims to have been subjected in the past is a factor to be considered when assessing the person’s risk of being subjected to torture or ill-treatment again upon return to his or her country. It notes that, in the present case, the complainant claims to have been tortured in the Democratic Republic of the Congo. The Committee also notes that the State party has pointed out that the complainant does not allege that he was subjected to torture or ill-treatment in the past, or that he illegally fled his country of origin because of threats of torture. The Committee observes that the complainant has not submitted any evidence that he has been tortured or subjected to ill-treatment in the recent past and has not produced any arguments that might cast doubt on the conclusions drawn by the Swiss authorities in that connection.

8.9The Committee notes that the complainant does not, either in his communication or in his comments, provide any information about the reasons that led him to flee his country of origin or about the circumstances of his journey to and arrival in Switzerland. It also notes that, according to the State party, contradictions have been identified in the statements made by the complainant, who alleged that he had been involved in a homosexual relationship in exchange for his transportation, information that was provided only at the time that his application for re-examination was being considered, in other words after the initial asylum proceedings had concluded. The Committee further notes the State party’s argument stressing that the complainant has not produced any evidence of the genuineness or nature of this homosexual relationship or of its potential effects on the reasons for his departure.

8.10The Committee notes that, in his additional comments of 10 August 2023, the complainant’s counsel submitted a laissez-passer which, according to him, proves that the complainant would risk being arrested upon his arrival in Kinshasa. It also notes that the State party maintains that the State Secretariat for Migration has cast doubt on this document and indicated that the complainant has not explained how the document demonstrates that he would be at risk in the event of his deportation.

8.11The Committee notes that the complainant claims not to have had timely access to the documents in his file. It also notes that, according to the State party, the complainant’s counsel was notified of the decision of 30 April 2019 to reject his asylum application and that the complainant failed to take the necessary steps to appeal against that decision. The Committee further observes that, after the decision of 30 April 2019 became final, the complainant was able to pursue several other remedies and apply for re-examination of his asylum application.

8.12With regard to the violation of articles 14 and 16, read in conjunction with article 3, of the Convention, the Committee notes the complainant’s argument that the Swiss authorities placed him in detention when he was ill, without his having had a consultation with a specialist. It also notes the State party’s argument that the complainant received treatment for his illness and that he had the possibility of applying for medical return assistance. The Committee further notes that the State party points out that the severity of the complainant’s illness was not such as to meet the threshold for the application of article 3 of the Convention and that the complainant himself, during the hearing of 24 April 2019, had stated that he was feeling better.

8.13Lastly, the Committee notes that the complainant had ample opportunity to provide supporting evidence and more details about his claims at the national level, first to the State Secretariat for Migration and then to the Federal Administrative Court, but that the evidence provided did not lead the national authorities to conclude that he would be at risk of torture or cruel, inhuman or degrading treatment upon his return to the Democratic Republic of the Congo.

8.14While the Committee is concerned at the numerous reports of human rights violations, including the use of torture and ill-treatment, in the Democratic Republic of the Congo, it recalls that, for the purposes of article 3 of the Convention, the complainant must face a foreseeable, real and personal risk of torture in the country to which he or she is returned. In the light of the foregoing, the Committee believes that such a risk has not been established. The Committee considers that the documents and information submitted by the complainant do not dispel the doubts expressed by the State party’s authorities as to their reliability and are not sufficient to establish that he would run a foreseeable, present, personal and real risk of being subjected to torture if he were deported to the Democratic Republic of the Congo.

8.15The Committee refers to paragraph 38 of its general comment No. 4 (2017), according to which the burden of proof is upon the complainant, who has to present an arguable case. In the light of the above, and in the circumstances of the present case, the Committee considers that the complainant has not discharged the burden of proof, having failed to provide sufficient information to establish that the authorities of the State party have treated him in a manner that might be contrary to articles 14 and 16, read in conjunction with article 3, of the Convention.

9.In the light of the foregoing, the Committee considers that the information submitted by the complainant is insufficient to substantiate his claim that the State party has violated articles 14 and 16 of the Convention or that he would face a foreseeable, present, personal and real risk of torture if he were deported to the Democratic Republic of the Congo, in violation of article 3 of the Convention.

10.The Committee, acting under article 22 (7) of the Convention, concludes that the deportation of the complainant to the Democratic Republic of the Congo would not constitute a violation of article 3 of the Convention by the State party.