BALABOUMUTOMBO V SWITZERLAND

CONSISTENT TENSE!!!!!!; the court??

Facts

The Applicant, BalabouMatombo, was a Zairian citizen born in 1961. Heclaimed to have been a member of the Zairian Armed Forces since 1982. In 1988, in response to feelings of discrimination based on his Luba ethnicity, the Applicant secretly joined a political movement Union pour la démocratieet le progrès social (UDPS), of which his father was allegedly also a member.The Applicant attended several illegal meetings and demonstrations organized by UDPS.

On 20 June 1989, the Applicant was arrested by three members of the Division SpécialePrésidentielle while delivering a letter from his father to a founding member and leader of UDPS named Mr. Etienne Tshisekedi.The Applicant was detained in a military establishment and locked in a one square metre cell, where he was subjected to electric shocks, beaten with a rifle, and his testicles were bruised until he lost consciousness. This torture continued for four days.

On 24 June 1989, the Applicant was brought before a military tribunal, found guilty of conspiracy against the State and sentenced to 15 years' imprisonment.He was transferred to a military prison, where he was detained for seven months without receiving medical attention for serious injuries sustained in his interrogation prior to the tribunal hearing. Hewas released on 20 January 1990 under the condition that he presented himself twice a week at the Auditoratmilitaire of Mantete. He sought medical treatment in February 1990 for his eye injury at the General Hospital Mama Yemo.

For fear of further injury, and of exposing other members of the UDPSto threats of similar treatment from the Government by virtue of their contact with him, the Applicant left Zaire for Angola, leaving his family, including two children. He stayed in Angola for three months with a friend.The Applicantlater left Angola for Italy, where he arrived on 29 July 1990 using a friend's passport.

On 7 August 1990, the Applicant illegally crossed the border to enter Switzerland.On 8 August 1990, he applied for recognition in Switzerland as a refugee. Hesoon learned that his father had been detained after his departure.

The Applicant was heard by the Cantonal Office for Asylum Seekers at Lausanne on 10 October 1990. He presented medical documents from Swiss medical practitioners indicating that the injuries he had corresponded with the alleged torture sustained in June 1989.

The Federal Refugee Office (Office fédéral des réfugiés) rejected the Applicant's application for asylum on 31 January 1992,and he was instructed to leave Switzerland.This decision was subsequently appealed a number of times on the ground that the authorities had not sufficiently taken into account essential documents, such as a report of Amnesty International and medical reports. The appeals were rejected.

The rejection of the application was based partly on the following:

it was unlikely that the Applicant had been imprisoned at a military prison for political reasons. The International Committee of the Red Cross (ICRC), which had visited the prison in November 1989, had stated that he apparently did not belong to the category of prisoners which fell under the mandate of ICRC that being prisoners of war and interned civilians, and "security" or "political" detainees; and

The Refugee Office doubted the authenticity of the Applicant's provisional release order from prison in Zaire, which he had submitted as evidence of his detention.

The Applicant then brought an action under article 22 of the Convention against Torture, which states that States may declare that they recognize'the competence of the Committee to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention.'

Arguments

The relevant provisions of the Convention Against Torture 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. For 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."

Two conflicting methods of interpretation and application of article 3 were offered by the opposing parties. Counsel forthe Applicant claimed that a real risk existed that he would be subjected to torture or that his security would be endangered if he were to be returned to Zaire. Heclaimedthat there was "a consistent pattern of gross and massive violations of human rights in Zaire" circumstances that in accordance with paragraph 2 of article 3 are to be considered and that this alone was sufficient grounds for preventing refoulement.

In contrast to this interpretation, counsel for the State argued that paragraph 1 stipulated the conditions in which a State party is precluded from expelling an individual from territory, while paragraph 2 operated to inform the State of evidence which is to be considered in determining the existence of such conditions. According to this mode of interpretation, the fact that a "consistent pattern of gross, flagrant or mass violations of human rights" exists in a country is insufficient on its own as grounds for believing that the person in question, if returned, would be in danger of being tortured. Rather, it is necessary to establish that these consistent patterns of violations of human rights were directed at the person in question as an individual, or at a group or category in which the person in question is a member. This was also the interpretation favoured by the Court.

In support of its interpretation of article 3 of the Convention, counsel for the State cited a case heard by the European Commission on Human Rights (ECHR), 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 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The State party argued that article 3 of the Convention against Torture does not provide a wider protection than article 3 of the European Convention, and so the case before the ECHR could be applied analogously to the present case.

Counsel for the Applicant contested the State party's argument that article 3 of the Convention against torture did not provide wider protection than article 3 of the European Convention. It was argued that the European Convention does not explicitly address the issue of refoulement the issue at hand in this case and that consequently its application to such situations has developed only in the jurisprudence of the European Commission and the European Court of Human Rights, which has typically been narrowly interpreted. Counsel argued that by virtue of explicit protection in the Convention against Torture against forced return to countries where an individual would be at risk of being subjected to torture, this necessarily leads to a different, wider interpretation than that of the European Convention. Consequently, Counsel argued that the Vilvarajah et al. decision could not be applied analogously to the case at hand.

There was also evidential and factual dispute between the parties. Amnesty International offered support, in a letter to counsel dated 3 November 1993, for the argument raised by the Applicant that he would be exposed to a risk of torture upon return to Zaire.It was emphasized in the Amnesty International submission that opponents of the government were particularly susceptible, with hundreds of opponents being arrested and many of them detained in secret places. It was further noted that the simple fact of seeking recognition as a refugee is seen as a subversive act, such that the Applicant himself would be a target for reprisal upon return because of his actions in seeking asylum.

On the contrary, the Refugee Office considered that there were no indications that the Applicant would be exposed to punishment or treatment prohibited by article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and that the Applicant's application for asylum was neither reliable or entirely convincing, with various contradictions and inconsistencies appearing throughout the application process.

Analysis

The Committee against Torture ultimately held that it was necessary to determine if there were sufficient grounds for believing that the Applicant as an individual would personally be in danger of being subjected to torture. In reaching its conclusion, the Committee was to consider all relevant information, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights.

The Committee concluded that substantial grounds existed for believing that the Applicant would be in danger of being subjected to torture. Factors taken into consideration included: the Applicant's ethnic background, alleged political affiliation and detention history; the fact that he appeared to have covertly left Zaire after deserting the army;and the arguably defamatory statements made about Zaire in the application process. The Committee concluded that there were "substantial grounds" in accordance with the meaning of article 3, paragraph 1 for believing that the Applicant's return to Zaire exposed him to a real risk of being tortured, and that the existence of "pattern of gross, flagrant or mass violations of human rights", within the meaning of article 3, paragraph 2, further strengthened that belief.

This result can be contrasted with the outcome of X v Netherlands . In that case, the issue of refoulement to Zaire was also at hand and the same interpretations of Article 3 were applied. Although it was accepted that "pattern[s] of gross, flagrant or mass violations of human rights" existed at the time in Zaire, because the Applicant in that case had not claimed to be an active political opponent and there was no indication that he was being sought by the authorities in his country, it was not established that there was a substantial likelihood of torture to him personally.

It is logical, and evidence from these two contrasting outcomes, that there must be sufficient nexus or connection between the occurrence ofconsistent patterns of human rights abuses and the individual seeking asylum, such that there are substantial grounds for belief that the individual in question will be tortured upon return.

A primary issue in cases dealing with asylum related cases is the level of scrutiny that the Committee against Torture should exercise when examining the facts presented in the application for asylum.The Committee in this case acknowledged that the implementation of article 3 of the Convention might be "abused" by asylum seekers. This potential for abuse of the article by illegitimate migrants must be weighed up against the importance of the asylum seeker's safety. In this case, the safety and security of the Applicant were held paramount, even in the presence of some doubts to the legitimacy or consistency of the facts presented.

This appears to be the view consistently adopted by international legal bodies when adjudicating asylum seeker cases with ambiguous facts. For instance, in the case of Tala v. Sweden , contradictions and inconsistencies in testimony of asylum seeker were attributed to post traumatic stress disorder resulting from torture, and so were considered non fatal to the application's success. Further, in C.T. & K.M. v. Sweden , the Committee concluded that complete accuracy is seldom to be expected of victims of torture, and inconsistencies in testimony do not undermine credibility if they are not material.

This is not to say that inaccuracies are to be overlooked in all circumstances. In E.R.K. & Y.K. v. Sweden , it was held that the State committed no violation of the Convention when the claimants were expelled to Azerbaijan based on evidence that many supporting documents were false.

It can be deduced from the case law that contradictory evidence and inconsistencies are non fatal to an application to an extent. However, the must be strong presence of truthfulness and legitimacy to the application falsification of evidence will not be accepted or permitted in the application process.

In this author's opinion, the Commission reached the correct decision in the case. However, the decision has had the unintentional effect of opening the floodgates for actions brought to the Commission. It is important to note that the Mutombo case was the first decision by the Commission concerning a rejected asylum seeker. After the Mutombodecision, the number of individual complaints under article 22 by rejected asylum seekers facingrefoulementincreased significantly. Human rights treaty bodies such as the Commission against Torture are considerably overburdened and under resourced. It could be argued that in order to prevent the Commission from being seen as an international refugee appeals board,choked with a backlog of applications from those unsuccessfully seeking asylum in various States, that a stricter application of the Convention may be required. Alternatively the Commission could adopt higher evidentiary burdens and legal tests, as well as a strict application of the rules of procedure.

But experts opine a restrictive application of the rules of procedure and adoption of higher evidentiary burdens will cause the Commission to reject otherwise meritorious claims, and will have the adverse effect of impeding the development of human rights and refugee law. An alternative to increased burdens of evidence and stricter application of procedural protocol is a focus on development and rationalization by States of their refugee and human rights procedures. Indeed, it has been argued that it is necessary for States to do so in order to comply fully with their obligations under both refugee and human rights instruments, and that the application of a narrow interpretation of the 1951 Convention relating to the State of Refugees by States is partly responsible for the increase in rejected asylum seekers seeking recourse via the Commission against Torture and other human rights treaty bodies and mechanisms.

The existence of extra territorial liability in cases of refoulement and forced return emphasize the importance of protection against torture in international law. It is imperative that there are ways and means by which asylum seekers can enforce their right to asylum and freedom from torture, be it through international conventions and agreements, or the existence of international human rights bodies. However, the creation of this right to appeal also creates problems of abuse of that right. In order to avoid the overburdening of these international human rights bodies and to prevent the impediment of development of human rights law and refugee law, it is essential that States take it upon themselves to create an effective system of assessing applications for asylum and comply with the objectives recognized in the Convention against Torture.