CAT/C/44/D/355/2008 State party’s observations on admissibility and on the merits 4.1 On 21 November 2008, the State party challenged the admissibility of the complaint on the grounds that domestic remedies had not been exhausted. On 1 June 2008, the complainant submitted an application for reconsideration to the Federal Office for Migration, which passed it on to the Federal Administrative Tribunal, the competent body in the matter. In its interlocutory decision of 19 June 2008, the Tribunal found that there were no grounds for waiving the fees to be paid in advance in order to cover the estimated cost of the procedure. As the complainant did not pay the fees required in order for the procedure to go ahead, the Tribunal declared the appeal inadmissible in its judgement of 11 July 2008. According to the State party, the investigating judge (a single judge) takes the interlocutory decision regarding the chances of success of the reconsideration and the payment of fees in advance, and these decisions do not predetermine the judgement on the merits. Once the fees are paid, the judgement on the merits can be handed down by the single judge provided that a second judge concurs.2 Failing agreement, the judgement on the merits is handed down by a panel of three judges.3 The State party believes that nothing in the case file indicates that the requirement that the fee be paid in advance prevented the complainant from exhausting this remedy. The State party therefore argues that domestic remedies have not been exhausted. 4.2 On 25 March 2009, the State party submitted its observations on the merits. It notes that, on 21 November 2008, the Swiss Government challenged the admissibility of the complaint. Consequently, its observations on the merits have been formulated for consideration solely in the event that the Committee does not come to the same conclusion as the Swiss Government on the complaint’s admissibility. 4.3 After reviewing the facts of the case, the State party asserts that the complainant, in the complaint he submitted to the Committee, did not produce any new evidence or put forward any facts. The complainant is essentially reiterating on the same arguments that he brought before the Tribunal at the time of his second application for review in 2008 and on the documents that he appended to his application, namely two death certificates, two photos of deceased persons and a wanted notice in his name. The State party points out that this evidence was examined by the Swiss asylum authorities. The only new documents accompanying the complainant’s letter to the Committee, dated 16 March 2009, are copies of a notice of court proceedings and a wanted notice dating from 2007, neither of which affects the issue in any way. 4.4 In the light of article 3 of the Convention, the State party notes the Committee’s jurisprudence and its general comment No. 1, paragraphs 6 ff., which require the complainant to prove that he is in personal, present and substantial danger of being subjected to torture if deported to his country of origin. The State party argues that it follows from this provision that the alleged facts must go beyond mere suspicion and that they should demonstrate a serious risk. The State party observes that the Congo is not in a situation of war or civil war and is not experiencing widespread violence of a sort that would, in itself, constitute sufficient grounds to conclude that the complainant would be in danger of torture if returned. 4.5 With regard to the concern raised by the complainant that he risks persecution if deported to the Congo, the State party recalls that peace agreements were signed in December 1999 between Sassou Nguessou’s new Administration and the opposition militias. A general amnesty law was also promulgated that same month. This law applied to 2 3 4 Article 111 (E) of the Asylum Act of 26 June 1998. Article 21, paragraph 1, of the Federal Administrative Tribunal Act of 17 June 2005, in conjunction with article 105 of the Asylum Act. GE.10-42782

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