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