CAT/C/46/D/399/2009
Following Sassou-Nguesso’s victory over Pascal Lissouba, who was forced into exile along
with other members of his party, the complainant joined the Conseil national de la
résistance (National Resistance Council) (CNR) and fought in Dolisie and other parts of the
country at the behest of Pascal Lissouba. Due to the armed conflict that broke out that year,
the complainant was not able to return to Brazzaville. Fearing for his life, he eventually left
the rebellion and moved to Pointe-Noire, where he found out that his name was on the list
of rebels wanted by the Government of Sassou-Nguesso. Given the settling of scores that
was taking place against Lissouba partisans and UPADS, the complainant left the Congo in
fear for his life and headed to Angola, and later South Africa, with the intention of joining
Pascal Lissouba in England. In 2003 he was apprehended while in transit at Zurich airport
for possession of a false passport.
2.2
The complainant filed a request for asylum on 25 September 2003, which the
Federal Office for Refugees (ODM) refused on 11 May 2004, saying that his statements
were not credible, particularly regarding the date of the elections, the continuous presence
of UPADS in the Congo after Pascal Lissouba’s departure, and the period during which the
complainant was said to have taken part in the fighting. ODM also deemed his military
identity card to be a fake because it did not carry an official stamp. An order for removal
from Switzerland was issued. On 23 April 2004 the complainant appealed the ODM
decision to the Swiss Asylum Review Commission. By a decision dated 1 July 2004, ODM
argued that his appeal should be rejected, noting that it was bound to fail from the outset as
it did not contain any new elements or evidence.
2.3
On 26 August 2009, the Federal Administrative Tribunal rejected the complainant’s
appeal, highlighting the inconsistencies and implausibilities in his account that were noted
in the initial ruling, the inauthenticity of the evidence submitted, and the fact that, even if
that evidence (particularly a wanted notice from 2001) was authentic, it did not support the
complainant’s claims of persecution because the complainant was wanted for vandalism,
which was not covered by article 3 of the Federal Asylum Act.1 The Tribunal added that,
even if the complainant had in fact fought with the opposition rebels, his fear of being
sought by the Congolese authorities would no longer be justifiable, given the recent
political changes in the Congo, in particular the peace accord that had been signed on 17
March 2003 between the two parties and the amnesty law adopted by the National
Assembly in August 2003, which applied to all offences committed by all warring parties
since January 2000. Despite the absolute majority won by Sassou-Nguesso in the latest
National Assembly elections held in 2007, the opposition still won 11 seats, 10 of them
taken by former President Lissouba’s UPADS, which was the main opposition party, and
which had nominated an official candidate in the presidential elections of 12 July 2009.
Thus, according to the Tribunal, the complainant would not be exposed to persecution in
the Congo, and his fears no longer seemed founded. While the Tribunal rejected his appeal,
it allowed him until 28 September 2009 to leave Switzerland.
2.4
Since his arrival in Switzerland, the complainant has maintained close ties with
UPADS and with former President Lissouba’s family and entourage. He is one of the
founding members of the Cercle d’études pour le retour de la démocratie au Congo
(Discussion group for a return to democracy in the Congo) (CERDEC), an association that
the main opposition parties in exile have recently created from abroad. He is well known in
Congolese circles in Switzerland, including among Sassou-Nguesso’s supporters. Several
of the complainant’s family members have been subjected to harassment by State agents.
The complainant himself has received so many anonymous phone threats that his counsel is
preparing to file a complaint against persons unknown with the authorities in Zurich.
1
GE.11-43892
Switzerland’s law on asylum.
3