CAT/C/44/D/355/2008
Brazzaville, and the military from the north of the country were suspected of having
instigated the assault. Some were arrested. The complainant found out that he had been on a
wanted notice issued by the authorities since 1 April 2000. On 6 April 2000, Cobra militias
close to the Government searched the complainant’s family home and killed his mother.
The complainant was on duty at army headquarters on that day. Having been told of the
events by a neighbour, the complainant hid at a friend’s house in Ouenze. Afraid of being
killed by the Cobras, he left the Congo for Kinshasa on 9 April 2000. From there, he went
on to Brussels, then Milan and finally Switzerland, where he requested asylum on 17 April
2000.
2.2
The government police allegedly took the complainant’s two brothers hostage and,
on 3 March 2002, killed them. After that event, the complainant was actively sought by the
country’s security services. The complainant did not mention these facts during the initial
asylum application procedure, as he was not certain of them. He later sent the Committee
the death certificates of his brothers, as well as the wanted notice, dated 10 May 2002, in
which he is named.
2.3
The Swiss Federal Office for Refugees, which is now known as the Federal Office
for Migration, turned down the complainant’s asylum application on 25 October 2002, on
the grounds that his allegations regarding certain crucial points were ill-reasoned and were
without sufficient foundation. The Office noted, in particular, that the complainant had
served in the army for two and one half years without the slightest problem. On 16
February 2004, the Swiss Asylum Review Board, now the Federal Administrative Tribunal,
rejected the complainant’s appeal. The application for review of that decision was turned
down by the Board on 23 August 2004 because the necessary advance payment had not
been made. A new application for review was submitted on 1 June 2008, but was rejected
on 11 July 2008 on the same grounds as before, i.e., failure to pay the necessary fees in
advance. The Federal Administrative Tribunal also noted that the application for review
appeared in any case bound to fail, so that it had no reason to waive the required advance
payment, equivalent to the estimated cost of the procedure. As the complainant was unable
to make the advance payment, he was denied the opportunity to have his application
reviewed by the Tribunal.
The complaint
3.1
The complainant alleges that his deportation to the Congo would place him at
serious risk of torture, in violation of article 3 of the Convention. He bases this claim on the
fact that his mother was killed in his stead in 2000, that he deserted from the army by
leaving the country — which is punishable by death — and that his two brothers were
subsequently killed in 2003. The complainant maintains that the amnesty signed in 20031 is
purely notional and does not protect him from persecution by the pro-government Cobra
militias. In addition, he has been a wanted man since his two brothers were killed in 2003.
3.2
The complainant maintains that the State party simply rejected the evidence he
submitted in support of his application without checking the authenticity of the documents
concerned. None of the documents that he provided was submitted for expert
authentication.
1
GE.10-42782
The Congolese National Assembly passed an amnesty law on 28 August 2003 benefiting the Ninja
militias that had clashed with the government troops of the Sassou Nguessou Administration. The law
supplements a previous general amnesty law adopted in December 1999, which applied to former
militia fighters who had demobilized and surrendered their weapons; cf. infra the State party’s
observations, para. 4.5.
3