CAT/C/46/D/399/2009 his close ties to Pascal Lissouba’s family and claims that he was the subject of a search and arrest warrant issued on 6 September 2004 for illegally wearing a military uniform and possession of a weapon of war. 4.4 The State party highlights the fact that none of these claims were presented to ODM or to the Federal Administrative Tribunal, and they were thus not examined by those authorities. As new facts, they could constitute grounds for an application under the extraordinary procedure to the authority of first instance (reconsideration) or to the appeal court (review), or even for a fresh asylum procedure (second application for asylum). The State party points to the Committee’s case law,2 according to which the State party should have the opportunity to examine new evidence before the matter is referred to the Committee in a communication under article 22 of the Convention. The State party therefore asks the Committee to declare the complaint inadmissible on grounds of nonexhaustion of domestic remedies in conformity with article 22, paragraph 5 (b), of the Convention. Complainant’s comments 5.1 In a reply dated 23 February 2010 to the State party’s observations on the admissibility of the complaint, counsel insists on the fact that important evidence justifying the complainant’s fears in the event of being returned to his country of origin — evidence that was submitted to the national courts — was not taken into account by the courts, in violation of article 3 of the Convention. The complainant further notes that the entry into force of the removal order puts him at risk of refoulement. According to article 112 of the Federal Asylum Act, an application under a special remedy does not suspend the enforcement of removal unless the authority decides otherwise.3 There is thus no guarantee that the complainant will not be sent back to his country before the extraordinary procedure is completed. The complainant therefore asks the Committee to find the communication admissible. Issues and proceedings before the Committee 6.1 Before considering any claim contained in a 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. 6.2 In accordance with article 22, paragraph 5 (b), of the Convention, the Committee must ascertain whether the complainant has exhausted all available domestic remedies; this rule does not apply where it has been established that the application of those remedies has been unreasonably prolonged, or that it is unlikely to bring effective relief to the alleged victim. 6.3 The Committee notes that, in the State party’s view, the complaint should be declared inadmissible under article 22, paragraph 5 (b), of the Convention because the main facts that the complainant submitted to the Committee were never presented to the national judicial authorities. These facts are that the complainant became actively involved in CERDEC in Switzerland, which led to him becoming known in Congolese circles in Switzerland and consequently to the harassment of his close relatives in Brazzaville by Congolese authorities, and that the complainant himself also received threatening phone 2 3 GE.11-43892 Communication No. 24/1995, A.E. v. Switzerland, inadmissibility decision of 2 May 1995, para. 4. Article 112 states: “The filing of extraordinary legal remedies does not suspend enforcement of removal, unless the authority responsible for handling the case decides otherwise.” 5