CAT/C/12/D/13/1993
page 9
would violate the obligation of Switzerland under article 3 of the Convention
not to expel or return a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to
torture.
9.2
The Committee is aware of the concerns of the State party that
the implementation of article 3 of the Convention might be abused by
asylum seekers. The Committee considers that, even if there are doubts
about the facts adduced by the author, it must ensure that his security is
not endangered.
9.3
The relevant provisions are contained in article 3:
"1. No State party shall expel, return (’refouler’) or extradite a person
to another State where there are substantial grounds for believing that
he would be in danger of being subjected to torture."
"2. Foe the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human
rights."
The Committee must decide, pursuant to paragraph 1 to article 3, whether
there are substantial grounds for believing that Mr. Mutombo would be in
danger of being subject to torture. In reaching this conclusion, the Committee
must take into account all relevant considerations, pursuant to paragraph 2 of
article 3, including the existence of a consistent pattern of gross, flagrant
or mass violations of human rights.The aim of the determination, however, is
to establish whether the individual concerned would be personally at risk of
being subjected to torture in the country to which he 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 a
sufficient ground for determining that a person would be in danger of being
subjected to torture upon his return to that country; additional grounds must
exist that indicate 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 specific circumstances.
9.4
The Committee considers that in the present case substantial grounds
exist for believing that the author would be in danger of being subjected to
torture. The Committee has noted the author’s ethnic background, alleged
political affiliation and detention history as well as the fact, which has not
been disputed by the State party, that he appears to have deserted from the
army and to have left Zaire in a clandestine manner and, when formulating an
application for asylum, to have adduced arguments which may be considered
defamatory towards Zaire. The Committee considers that, in the present
circumstances, his return to Zaire would have the foreseeable and necessary
consequence of exposing him to a real risk of being detained and tortured.
Moreover, the belief that "substantial grounds" exist within the meaning of
article 3, paragraph 1, is strengthened by "the existence in the State