Submitted by:
A. L. N. (name deleted)
Alleged victim:
The author
Date of communication:
25 July 1997
The Committee against
Torture, established in conformity with article 17 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Having completed
consideration of communication No. 90/1997 submitted to the Committee
against Torture under article 22 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken account
of all the information communicated to it by the author of the communication
and the State party,
Views under article
22, paragraph 7, of the convention
1. The author of the communication
is A. L. N., an Angolan born on 25 September 1978. He is currently
resident in Switzerland where he has applied for refugee status and
risks being sent home. The author claims that his expulsion would
constitute a violation of article 3 of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The facts
as submitted by the author
2.1 The author states
that on 16 February 1997 his father, a member of the União Nacional
para a Indepêndencia Total de Angola (UNITA) gave him a video cassette
on torture and massacres perpetrated by the Movimento Popular para
a Libertação de Angola (MPLA) for him to take to a friend. The cassette
contained a scene filmed in 1987 showing soldiers plunging the then
nine-year-old author's hand into boiling water in front of his father.
The author says that the scars are still visible. He was arrested
on the way during an identity check by MPLA soldiers, who took him
to an unknown site in Luanda, where he was beaten. He was then forced
to take the soldiers to the family home so that they could arrest
his father. At the house he managed to escape while the soldiers were
momentarily distracted. On 19 February 1997, he left the country on
a borrowed passport issued to the son of one of his father's friends
and went to Italy. He arrived in Switzerland on 24 February 1997.
2.2 That same day, the
author submitted an application for asylum to the Refugee Registration
Centre in Geneva (CERA). On 2 June 1997, the Federal Office for Refugees
(ODR) rejected the application and ordered his expulsion, finding
that the author's statements did not meet the plausibility criteria
laid down in article 12 (a) of the Federal Asylum Act. The Office
also said there was no evidence to suggest that the author would be
specifically and seriously likely, in the event of a return to his
country, to be subjected to torture or to cruel, inhuman or degrading
treatment.
2.3 The author appealed
against this decision before the Commission de recours en matière
d'asile (CRA), which rejected the appeal in a decision dated 16
July 1997. The Commission found that the author had not shown that
his return to his country of origin would put him in danger. It added
that the author was young, in good health and, according to his own
statements, capable of going back to live in Luanda, since he had
already lived there and could count on his family for support.
The complaint
3. The author says that
he is still on the wanted list because of the video cassette and fears
for his physical and mental health if sent home. He says that he is
part of the Bakongo ethnic minority, and that CRA itself has acknowledged
that members of that group are exposed to some danger.
The State
party's observations on the admissibility and merits of the communication
4. On 16 October 1997
the Committee, through its Special Rapporteur, forwarded the communication
to the State party for its observations.
5.1 In a reply dated 15
December 1997, the State party indicated that the author had exhausted
domestic remedies. The communication could thus be considered on its
merits.
5.2 The author's main
point, i.e., his arrest after coming into possession of a video cassette
showing a scene in which soldiers plunged his hand into boiling water,
had not been consistently related at the two hearings on his application,
at CERA and before the Cantonal authorities. His accounts were vague
or contradictory as regards both the origin of the video cassette
and the way in which it was supposed to have been filmed or what precisely
it contained.
5.3 The author said that
the soldiers had not asked him who the video cassette was for. There
again his story was not credible. Experience unfortunately showed
that, as a rule, people arrested in such cases were tortured precisely
in order to obtain information about those who had an interest in
documents challenging the regime in power.
5.4 The author's account
of how he managed to escape was also unconvincing. It did not seem
possible that the author, escorted by five guards, should have managed
to escape from them as easily as described, without even being pursued.
5.5 On the strength of
the author's tale, the scars visible on his hands could not be ascribed
with sufficient probability to acts of the kind prohibited by the
Convention. They could just as well have resulted from an occupational
or domestic accident, for example. The author had submitted no medical
certificate indicating that he was still traumatized by the incident
as he stated in his communication.
5.6 The State party also
said that no causal link could be established between the incident
related – the author's suffering at the hands of MPLA soldiers,
which dated from 1987 – and his departure for Switzerland.
5.7 As regards the situation
in the country, Angola was no longer in a state of civil war or widespread
violence. The peace process had passed a milestone with the establishment
on 11 April 1997 of a Government of unity and national reconciliation.
The author's claim to have been arrested and beaten by MPLA soldiers
on 16 February 1997 for being in possession of a compromising video
cassette seemed somewhat improbable in the light of the moves towards
national reconciliation made by the various opposition groups, including
MPLA and UNITA.
5.8 CRA had concluded
it would be unreasonable to require the author to be returned to areas
under UNITA control or close to the demarcation lines. Elsewhere,
failing specific risks, there were adequate safeguards of his safe
return at least to the capital or a number of large urban conglomerations
along the coast. Living conditions in Luanda, where there were serious
problems, were nevertheless not such as to rule out on humanitarian
grounds the return of young, single people in good health.
5.9 Lastly, the author
said that he belonged to an ethnic minority, the Bakongo, whose members
CRA itself acknowledged to face certain dangers. CRA had indeed stated
that Bakongos and members of other ethnic groups could not get back
to their home districts from Luanda without some danger. But it had
also said that, contrary to rumour and despite rivalries more social
than ethnic in nature, there was no indication that, since the signature
of the Lusaka Protocol, the governmental authorities had taken any
steps that directly or indirectly discriminated against or persecuted
minority population groups in Angola, including the Bakongo, members
of whom were to be found throughout the State apparatus.
5.10 The fact that Bakongos
had previously lived in Luanda or still had family ties there was
one factor that entered into consideration in deciding whether or
not they could find refuge within the country and survive, socially
and economically, in the capital.
5.11 In the present case,
the author had not shown that returning to his country of origin would
put him in any specific danger. He was young and in good health, and
according to his own statements would be able to re-establish an existence
in Luanda since he had already lived there and could count on his
family for support.
5.12 Even if the Committee
concluded that the human rights situation in Angola, including the
unfortunate position that the author claimed for his ethnic minority,
was serious and gave rise to concern, such a finding would not, in
the absence of supplementary indications, be sufficient to establish
that the author was in personal danger of being tortured.
5.13 In the light of the
foregoing, the State party considered that returning the author to
Angola would not constitute a violation of the Convention.
Author's
comments
6. By letter dated 17
March 1998, the author indicates that the situation in Angola is very
unstable and that the country is still at war. If he were expelled,
he would thus be in physical danger.
Issues and
proceedings before the Committee
7. Before considering
any claims contained in the communication, the Committee against Torture
must decide whether or not it is admissible under article 22 of the
Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5 (a), of the Convention, that the same
matter has not been and is not being examined under another procedure
of international investigation or settlement. The Committee also notes
that all domestic remedies have been exhausted, and finds there are
no further obstacles to its declaring the communication admissible.
Since the State party and the author have both made comments regarding
the substance of the communication, the Committee will proceed to
consider the communication on its merits.
8.1 The Committee must
decide whether sending the author back to Angola would violate Switzerland's
obligation under article 3 of the Convention not to expel or return
(refouler) an individual to another State if there are substantial
grounds for believing that he would be in danger of being subjected
to torture.
8.2 The Committee must
decide, pursuant to article 3, paragraph 1, if there are substantial
grounds for believing that the author would be in danger of being
tortured if sent back to Angola. To do so, it must take account of
all relevant considerations as called for by article 3, paragraph
2, including the existence of a consistent pattern of gross, flagrant
or mass violations of human rights. The aim, however, is to determine
whether the individual concerned would personally risk torture in
the country to which he or she would return. It follows that the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights in a country does not as such constitute sufficient grounds
for determining whether the particular person would be in danger of
being subjected to torture upon his return to that country; additional
grounds must be adduced to show that the individual concerned would
be personally at risk. Similarly, the absence of a consistent pattern
of gross violations of human rights does not mean that a person cannot
be considered to be in danger of being subjected to torture in his
or her particular circumstances.
8.3 The Committee observes
that past torture is one of the elements to be taken into account
when examining a claim under article 3 of the Convention, but its
purpose in considering the communication is to decide whether, if
the author were returned to Angola, he would now risk being tortured.
8.4 In the case in point
the Committee notes the author's claim to have been tortured in 1987
and beaten upon his arrest in February 1997. The author has however,
supplied no evidence, whether medical certificates or other, attesting
to acts of torture or ill-treatment or the sequelae of such. In particular,
the Committee notes that the author has supplied no detailed information
on how he was treated when arrested in February 1997, although it
was that arrest that prompted him to leave for Switzerland.
8.5 The author bases his
fear of torture on the fact that he is still being sought by MPLA
soldiers because of the video cassette. The Committee notes, however,
that he has put forward no reason to suggest that he is indeed still
wanted. Neither does he make any allusion to the circumstances of
his family, including his father, who, according to the author, was
also wanted in connection with the video cassette.
8.6 The Committee notes
that the situation in Angola, given the peace process, is still difficult,
as recently stated in a report by the Secretary-General on the United
Nations Observer Mission in Angola (MONUA). The same report states
that human rights violations, including torture, which are attributed
to the national police among other parties, continue to take place.
But it also says that significant progress has been made and that
the Government and UNITA have agreed on important points which should
enable the peace process to advance. It would therefore seem that
the situation in the country has not deteriorated since the author
left.
8.7 The Committee points
out that, for the purposes of article 3 of the Convention, the individual
concerned must face a foreseeable, real and personal risk of being
tortured in the country to which he is returned. On the basis of the
above considerations, the Committee is of the opinion that such a
risk has not been established.
8.8 In the light of the
foregoing, the Committee considers that the information before it
does not show substantial grounds for believing that the author runs
a personal risk of being tortured if sent back to Angola.
9. The Committee against
Torture, acting under article 22, paragraph 7, of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
concludes that the facts before it do not indicate a breach of article
3 of the Convention.
[Text adopted
in French (original version) and translated into English, Spanish and
Russian.]
