CAT/C/48/D/382/2009
2.2
The complainant joined the principal opposition party, the Movement for the
Liberation of the Congo (MLC), in 2005 and became its active member shortly after. He
participated in several MLC activities seeking a restoration of the rule of law in the country.
In the neighbourhood, he was well-known for his active promotion of MLC activities.
During the presidential electoral campaign in 2006, Kinshasa witnessed very violent
clashes between the followers of the outgoing President Laurent Kabila and his principal
political rival Jean-Pierre Bemba. Jean-Pierre Bemba gained an electoral victory in
Kinshasa as well as the Provinces of Equateur and Bas-Congo. The complainant is from
Bas-Congo by origin.
2.3
On 22 and 23 March 2007, the new conflict arose in Kinshasa, which was regarded
as an act of retaliation by the security forces of the newly elected president Joseph Kabila
against the followers of Jean-Pierre Bemba. The complainant states that he was stopped on
22 March 2007 by the presidential guard in the Gombe neighbourhood of Kinshasa due to
his active political-religious views as he could be easily distinguished as a participant to the
demonstrations by his cap bearing the image of Bemba’s MLC. He was subjected to torture,
including using rifle butts, slaps, hits, insults and threats. The complainant allegedly lost
consciousness and was reportedly left bleeding on a side-walk in a sand-box. Two of the
complainant’s teeth were reportedly broken during the incident.
2.4
Following the incident, the complainant went into hiding in Kimbanseke, a suburb
of Kinshasa, in order to escape persecution by the police. When in hiding, the complainant
learned that he was being sought and that an arrest warrant against him had been issued on
6 April 2007 by the National Intelligence Agency. Given the threats against his family and
relatives and fearing for his life and security, in particular due to the incidents of torture on
22 March 2007, the complainant decided to flee the Democratic Republic of the Congo.
2.5
Upon arrival in Switzerland on 26 December 2007, the complainant submitted a
request for asylum. The Federal Office for Migration in its decision of 14 January 2009
rejected the complainant’s request as unsubstantiated and ordered him to leave Switzerland
before 11 March 2009. The complainant appealed against the decision to the Federal
Administrative Tribunal, which on 16 March 2009 dismissed the appeal and ordered an
immediate execution of the Federal Office for Migration order for the forced return of the
complainant. However, the Office extended the time limit for the complainant’s departure
from Switzerland to 16 April 2009.
The complaint
3.1
The complainant claims that his deportation from Switzerland to the Democratic
Republic of the Congo, which has signed an agreement with Switzerland on the
readmission of refused asylum seekers, would constitute a violation of article 3, paragraph
1, of the Convention as there are substantial grounds for believing that he would be in
danger of being subjected to torture if returned.
3.2
Referring in general to information from unspecified human rights organizations, the
complainant alleges that many of those who were arrested during the events of 22 and 23
March 2007, including the members of MLC, followers of Jean-Pierre Bemba and those
coming from the Provinces of Equator and Bas-Congo, have been subjected to secret
detention. The complainant also claims that no amnesty has been granted to those arrested
many of whom have been killed or have disappeared.
3.3
The complainant claims, without providing any details, that his family members
have continued to suffer persecution by the security agents as a reprisal for not disclosing
his whereabouts. To further demonstrate the substantial grounds for believing that he would
be at risk of being subjected to torture if returned, the complainant draws to the
Committee’s attention the medical certificate concerning his treatment of two broken teeth
3