CAT/C/12/D/13/1993
page 6
country is not sufficient to preclude the return of an individual, as it
must be shown that the individual himself is at risk. The State party
further refers to the decision of the European Court of Human Rights in
Vilvarajah e.a. v. The United Kingdom, where it was held that a mere
possibility of ill-treatment because of the general situation in a country
was not in itself sufficient to give rise to a violation of article 3. The
State party argues that article 3 of the Convention against Torture does not
provide a wider protection than article 3 of the European Convention. It adds
that the author himself is apparently of the same opinion, since he did not
deem it necessary to invoke article 3 of the Convention against Torture while
exhausting his domestic remedies, but only invoked article 3 of the European
Convention.
6.5
The State party submits that the author of the present communication does
not have substantial grounds to believe that he himself would be in danger of
being subjected to torture in case of his return to Zaire. Even taking into
account the general situation in Zaire, the State party claims that the
evidence adduced by the author does not support his allegations. In this
context, the State party submits that it has, on several occasions, contacted
its embassy in Kinshasa before taking its decision not to grant the author
asylum. The embassy contacted an informant from the human rights movement in
Zaire, who advised the embassy that the author’s story was highly unlikely.
He affirmed that the provisional release order was a document without any
legal value and that all released prisoners were provided with a "fiche de
libération", which the author did not possess. Moreover, the signature on the
order produced by the author does not correspond with the signature of the
director of the military prison in which the author allegedly was detained.
The State party further submits that the author’s name does not figure in
the Ndolo prison registers for 1989 and 1990 and that the author’s father
has declared that his son has never been detained in a military prison. It
is also submitted that the drawing made by the author of the prison lacks
important elements such as the desk of the prison’s director and the division
of the prison in two parts, one for ordinary soldiers and one for officers.
6.6
As regards the author’s father, it was found that he had retired,
not for political reasons, but pursuant to the applicable rules for civil
servants. The leaders of the UDPS subsection, to which the author’s
father geographically belongs, have stated that he was not a UDPS member.
6.7
Moreover, the State party argues that, even if the author’s story is
true, it still does not indicate that a real risk exists that he will be
subjected to torture upon his return. The State party argues that the fact
that the author was provisionally released after seven months, while having
been sentenced to 15 years’ imprisonment, shows that such a risk is minimal,
even if he has been subjected to torture after his arrest in 1989. The State
party recalls that the author has admitted having received a new military
uniform upon his release. The State party further refers to the author’s
communication to the Committee, and concludes that he left Zaire mainly
because he did not want to endanger his family and friends, not because he
was personally at risk.