The case is "K.M. v. Switzerland". The decision of the Committee against Torture of April 28, 2022. Communication No. 881/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
As could be seen from the text of the Decision, the applicant claimed a violation of article 3 of the Convention in connection with his impending deportation to the Democratic Republic of the Congo, where he faces torture and cruel, inhuman or degrading treatment, since he knows about the transportation of corpses and their burial place and escaped as a member of the Congolese army, which amounts to desertion punishable by the Congolese military justice (paragraph 3.1 of the Decision).
The Committee's legal position is that the prohibition of torture is absolute and non-derogable, and that the State party cannot invoke exceptional circumstances to justify acts of torture (paragraph 9.2 of the Decision).
The Committee must determine whether there are serious grounds to believe that the complainant personally would be at risk of being subjected to torture if he were deported to the Democratic Republic of the Congo. In assessing such a risk, the Committee should take into account all relevant considerations arising from article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the purpose of such an assessment is to determine whether the person in question would be at immediate and foreseeable risk of being subjected to torture in the country to which he is to be deported. Consequently, the existence of a practice of gross, flagrant and mass violations of human rights in a particular country is not in itself a sufficient basis for determining that a particular person would be in danger of being subjected to torture upon return to that country. Additional grounds must be given to confirm that such a danger would threaten the person in question (See the cases: Alhaj Ali v. Morocco (CAT/C/58/D/682/2015), paragraph 8.3; R. A. I. v. Morocco (CAT/C/52/D/525/2012), paragraph 7.2; "L. M. v. Canada" (CAT/C/63/D/488/2012), paragraph 11.3; and "K. M. v. Switzerland" (CAT/C/71/D/865/2018), paragraph 7.3). On the other hand, the absence of a consistent pattern of egregious human rights violations does not mean that the person concerned cannot be subjected to torture, taking into account the specific circumstances of his case (see Cases: Kalinichenko v. Morocco (CAT/C/47/D/428/2010), paragraph 15.3; and K. M. v. Switzerland, paragraph 7.3) (paragraph 9.3 of the Decision).
The Committee refers to its general comment No. 4 (2017), according to which the obligation of non-refoulement arises whenever there are "serious grounds" to believe that a person may be subjected to torture in the State to which he is to be expelled, either in a personal capacity or as a member of a threatened group the risk of being subjected to torture in the destination State. The Committee usually considers in such cases that there are "serious grounds" whenever the risk of being subjected to torture is "foreseeable, personal, immediate and real". Factors of personal danger to the author may include, in particular, the political affiliation or political activities of the author or members of his family, as well as the existence of an arrest warrant in the absence of guarantees of proper treatment and fair trial. The Committee recalls that the burden of proof rests on the complainant, who must present defensible arguments, that is, substantial arguments showing that the risk of being subjected to torture is a foreseeable, personal, immediate and real danger to him. However, if the applicant is in a situation where he is unable to provide more detailed information about his case, the burden of proof falls on the opposite party, and it is up to the State party concerned to investigate the allegations and verify the information that underlie the communication. The Committee also recalls that it attaches great importance to the conclusions formulated by the authorities of the States parties concerned on the basis of the facts revealed; Nevertheless, he does not consider himself bound by such conclusions and conducts a free assessment of the information provided to him in accordance with article 22, paragraph 4, of the Convention, taking into account all the circumstances relevant to each case <11> (paragraph 9.4 of the Decision).
The Committee recalls that the existence of human rights violations in the country of origin is not in itself sufficient to conclude that the applicant is personally at risk of being subjected to torture (paragraph 9.6 of the Decision) (See the case: A.M. v. Switzerland, paragraph 7.7.).
The Committee's assessment of the factual circumstances of the case: it was necessary to determine whether the applicant's expulsion to the Democratic Republic of the Congo would violate the State party's obligation under article 3 of the Convention not to expel or return a person to another State if there are serious grounds to believe that he would be in danger of being subjected to torture or other cruel, inhuman or degrading treatment the dignity of treatment and punishment (paragraph 9.2 of the Decision).
The Committee took note of the complainant's argument that, if deported to the Democratic Republic of the Congo, the State party would act in violation of his rights under article 3 of the Convention. The Committee also took note of the complainant's argument that, as a deserter from the Congolese army with the ranks of Sergeant Major, Adjudan and Adjudan First Class, who served as General Shora's personal driver and transported troops and military equipment, he could have been subjected to ill-treatment if deported to his country of origin. In this regard, the Committee also noted that the State party did not dispute the fact that the complainant served in the Congolese army (paragraph 9.5 of the Decision).
The Committee recalled that it must determine whether the author is currently at risk of being subjected to torture if he is deported to the Democratic Republic of the Congo. It stated that the applicant had every opportunity to substantiate and clarify his complaints at the national level - at the State Secretariat for Migration and the Federal Administrative Court, but that the arguments presented by the author did not allow the national authorities to conclude that upon return to the Democratic Republic of the Congo he could be subjected to torture or cruel, inhuman or degrading treatment dignity of treatment. The Committee also found that the situation in the country had changed due to the end of the Joseph Kabila regime after the presidential elections on 30 December 2018 and the release of political prisoners.... The mere fact of human rights violations in the Democratic Republic of the Congo does not constitute sufficient grounds for concluding that the applicant's expulsion to that country would constitute Violation of article 3 of the Convention (See cases: H. K. v. Switzerland (CAT/C/49/D/432/2010), paragraph 7.5; R.D. v. Switzerland (CAT/C/51/D/426/2010), paragraph 9.7; H. v. Denmark (CAT/C/53/D/458/2011), paragraph 9.6; "E. E. E. v. Switzerland" (CAT/C/54/D/491/2012), p. 7.7; "M. F. v. Switzerland", p. 7.7; "T. Z. v. Switzerland", p. 8.7; "H. v. Switzerland" (CAT/C/65/D/765/2016), p. 7.8; and K. M. v. Switzerland, paragraph 7.6.). The Committee pointed out that, as follows from the case file, when considering the applicant's asylum applications, the authorities of the State party took into account relevant general information. It took into account that in the case the applicant had not provided evidence that he had been persecuted for actions related to the regime of Joseph Kabila, and that his desertion from the army was of sufficient importance to attract the interest of the authorities of the country of origin (See the case of Z. v. Switzerland" (CAT/C/64/D/738/2016 and CAT/C/64/D/738/2016/ Corr.1), p. 7.6.), and therefore concluded that the information provided did not indicate that the applicant was personally at risk of being subjected to torture or cruel, inhuman or degrading treatment if he was deported to the Democratic Republic of the Congo (paragraph 9.6 of the Decision).
The Committee noted the complainant's claim that he suffers from post-traumatic stress disorder, but the complainant was unable to prove that he had been a victim of torture or ill-treatment in the recent past, and did not provide any evidence that could cast doubt on the conclusions of the Swiss authorities on the refusal of his asylum application (paragraph 9.7 of the Decision).
The Committee stressed that the complainant had provided medical reports from 2017, 2018 and 2019 substantiating his complaint, indicating that he suffered from, inter alia, post-traumatic stress disorder and that expulsion to the Democratic Republic of the Congo, in his opinion, would violate his rights under the Convention. The Committee also took note of the State party's argument that these health problems could be resolved in the applicant's country of origin. The Committee therefore considered that the applicant's situation, including his physical and psychological health, had been carefully examined by the Swiss authorities, who concluded that there were no serious risks that could constitute an infringement of the rights guaranteed by the Convention in the event of the applicant's expulsion to the Democratic Republic of the Congo (paragraph 9.8 of the Decision).
The Committee's conclusions: The information provided by the complainant is insufficient to confirm the existence of a foreseeable and real risk of torture for him personally if he is deported to the Democratic Republic of the Congo.