CAT/C/44/D/355/2008
demobilized militiamen who had surrendered their weapons as of the date of its
promulgation, i.e., 20 December 1999, as well as to career soldiers. Additionally, on 28
August 2003, another amnesty law covering the period from 15 January 2000 until the
law’s promulgation was adopted for Ninja militia4 who had clashed with government
troops. According to the complainant, the amnesty for Ninja militia was not applied in
practice. In that respect, the State party refers to several independent sources, such as
reports from Amnesty International, Freedom House, Human Rights Watch and the United
States Department of State, which it says make no mention of any prosecution brought
against former members of these militias. The State party also mentions members of the
regime of former President Lissouba, who had apparently returned to the Congo without
any trouble. It points out that the complainant was a simple sergeant in the regular army and
that he served for two years without the slightest problem. These elements suggest that the
complainant was not demonstrably at risk of persecution.
4.6
With regard to subparagraphs 8 (b) and (c) of general comment No. 1, the State
party notes that, firstly, the complainant has not alleged that he was tortured in his country
of origin prior to his departure and that, secondly, he has never engaged in political activity
in the Congo. These two risk factors that might arise in the event of return cannot therefore
be taken into account.
4.7
In relation to factual inconsistencies in the complainant’s claims, the State party
refers the Committee to the rulings issued by the domestic courts, which gave ample
reasons for their decisions as part of a detailed examination of the case. With regard to the
problems that the complainant allegedly experienced after joining the regular army, namely
tension with other military personnel, the State party considers his account to be incoherent
and without foundation. Moreover, the complainant does not pursue that argument in his
complaint to the Committee. The complainant also alleges that two of his brothers were
taken hostage and killed by the police because of his non-appearance before the authorities.
The Federal Administrative Tribunal maintains that the two death certificates appear to
have been issued on request and might even be forgeries. Indeed, the preprinted sheet
appears to contain errors of form, and the State party is doubtful that the information given
on it is true. Furthermore, the occupation of the author’s brothers as it appears on the death
certificates, namely “pupil”, appear inconsistent with their ages. The State party notes that
the death certificates do not give the cause of death or explain how the alleged brothers of
the complainant died. It therefore considers that these certificates have no evidential value.
The same applies to the wanted notice dated 10 May 2002. The State party believes the
notice to be a crude forgery, as the stamp and signature have been copied using a colour
photocopier, while the personal details of the party concerned have been added using a
typewriter.
4.8
The copies of a notice of court proceedings dated 1 February 2007 and a wanted
notice dated 16 March 2007, which were submitted to the Committee on 16 March 2009,
were not submitted to the Swiss authorities. The State party believes that, at first sight,
these documents exhibit similar flaws to those of the wanted notice of 10 May 2002. The
State party adds that they do not state, or at least not explicitly, the reasons why the
complainant might be wanted. The State emphasizes that, as a general rule, wanted notices
are not shown to the persons concerned. This is all the more so in the case of notices of
court proceedings, which are documents circulated between authorities only. The
complainant does not explain how he was able to obtain these documents. The State party
points out how easy it is to obtain forgeries in the Congo, so that their evidential value is
4
GE.10-42782
The Ninja militia, from the north of the Congo, fought against Sassou Nguessou’s Administration.
5