CAT/C/33/D/133/1999
page 3
The facts as submitted by the complainant
2.1
The complainant lived and worked on the farm of his uncle, his father’s half-brother, a
soldier in the State of Chiapas. His uncle, who had bought the farm in February 1995, had
deserted from the army in December 1996, without telling his family; he had also been accused
of having links with the Ejército Zapatista de Liberación Nacional (EZLN) and of treason against
the homeland.
2.2
On 29 December 1996, according to Mr. Falcon Ríos, the complainant and his family
were taken by soldiers to a military camp for questioning about, in particular, the whereabouts of
the complainant’s uncle. They were released at 7 a.m. but were ordered not to leave their home.
On 15 February 1997 the army returned, soldiers smashed the door and the windows of the house
and again took the family to a military camp for further questioning. This time, however, they
were mistreated, and the complainant’s mother and sister were raped in the presence of the
complainant and his father. The soldiers then tortured the father, striking him on the temple with
a pistol butt until he lost consciousness. The complainant’s hands were tied behind his back and
he was hit in the stomach; a hood was put over his head to induce a feeling of asphyxiation. The
soldiers continued to question him about where his uncle was hiding; since the complainant
could not reply, they stripped him and cut him near the genitals with a knife; they then tied his
testicles and yanked them while continuing to question him. Lastly, they dipped his head in a
tub filled with excrement in an attempt to obtain the information they wanted.
2.3
The complainant states that when he and his family returned to the farm they were kept
under military surveillance. On 20 March 1997 the soldiers returned; the complainant, his father,
his mother and his elder sister were taken to different military camps. The two younger sisters,
aged 6 and 9, were left alone in the house. It was the last time that the complainant saw his
family. The complainant was again tortured: the soldiers placed a bag over his head and beat
him severely, including around the head, thereby causing problems with his sight. They burned
his arms to make him sign documents proving he had links with EZLN. The complainant finally
signed the documents when the soldiers began to burn his face. They then photographed him,
took his fingerprints and falsified an EZLN identity document.
2.4
The complainant states that he lost consciousness after drinking a glass of water
containing an unknown substance. When he came to, he had been set free in an unknown
location. He claims he was in an armed conflict zone when he regained consciousness.
2.5
Subsequent to these events, the complainant decided to leave his country
on 22 March 1997. He arrived in Canada on 2 April 1997 and immediately applied for asylum.
2.6
On 20 March 1998 the Refugee Protection Division of the Immigration and Refugee
Board determined that the complainant was not a refugee within the meaning of the Convention
as defined in the Immigration Act, since his account was not credible. It was particularly critical
of the implausible circumstances attending his uncle’s desertion and the falsification of an EZLN
card, there being no evidence that the movement issues identity cards to its members.
On 17 April 1998 the complainant submitted an application for judicial review of the Board’s
decision. In a decision delivered on 30 April 1999, the Federal Court of Canada (First Instance