Communication: E.K.U. v. Finland. Message No. 490/2012. The decision was adopted by the Committee against Torture on May 4, 2015.
In 2012, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Finland.
Subject matter: Threat of expulsion to the Democratic Republic of the Congo.
Substantive issues: the threat of torture upon return to the country of origin.
The Committee's legal position: in assessing such a risk (Whether there are substantial grounds to believe that the applicant would personally be in danger of being subjected to torture upon return to the Democratic Republic of the Congo.), the Committee should take into account all relevant circumstances under paragraph 2 of article 3 of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that such an assessment is intended to determine whether the individual is personally at a foreseeable and real risk of being subjected to torture in the country to which he or she is to be returned. It follows from this that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country is not in itself a sufficient reason to believe that a 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 personally. Conversely, the absence of a consistent pattern of egregious human rights violations does not mean that a person cannot be subjected to torture in certain specific circumstances (paragraph 9.3 of the decision).
The Committee recalls its general comment No. 1 (1997), according to which, when assessing the risk of torture, grounds that go beyond mere speculative assumptions or suspicions should be analyzed. Although the assessment of this risk should not be based on the criterion of a high degree of probability (paragraph 6), such a risk should be personal and real. In this regard, in its previous decisions, the Committee has decided that the risk of torture must be predictable, real and personal. The Committee recalls that, according to the provisions of general comment No. 1, it will rely heavily on statements on the factual side of the case prepared by the authorities of the State party concerned, although at the same time it does not consider itself bound by such conclusions and proceeds from the fact that, in accordance with paragraph 4 of article 22 of the Convention, it is entitled to freely assess facts, taking into account all the circumstances of each specific case. The Committee further recalls that, in accordance with general comment No. 1 (para. 5) the burden of a reasoned presentation of the case lies with the author of the communication (paragraph 9.4 of the decision).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the complainant's claim that she was arrested by soldiers of the FARDC (Armed Forces of the Democratic Republic of the Congo.) during a seminar for women in Dongo (One of the regions of the Democratic Republic of the Congo.) in 2009 and that she was subjected to ill-treatment and torture by soldiers, including repeated rape. The Committee takes into account the State party's submission, according to which the State authorities received only one medical report dated 2 June 2010, which they do not consider sufficient evidence of torture. The Committee notes, however, that the report indicates that the scars on the applicant's body and the psychiatric symptoms observed in her correspond to the information provided by the applicant about torture. The Committee concludes that the complainant has provided sufficient evidence that she has been subjected to torture in the past (paragraph 9.5 of the decision).
The Committee ... Takes note of the complainant's claim that she was the victim of rape and other torture by FARDC soldiers, who are the official armed forces of the State party and are also present and active throughout its territory, and that, as she claims, she escaped from custody in FARDC. The Committee takes into account the State party's submission regarding the credibility of the complainant's account of her political activities and membership in an opposition party, as well as the circumstances of her escape and departure from the country. The Committee... Recalls that victims of torture can rarely be expected to provide complete accuracy of the information they provide and that inconsistencies in the complainant's presentation of the facts do not cast doubt on the overall veracity of her allegations, especially since it is confirmed that she suffers from post-traumatic stress disorder (See Tala v. Sweden, paragraph 10.3.). The Committee... Notes that at the time of her arrest the applicant was wearing items of clothing indicating that she belonged to the supporters of the opposition party and had a membership card with her, and also emphasizes that this is a sufficient basis for forming the idea that she was a member and activist of the party (paragraph 9.6 of the decision).
The Committee takes note of the complainant's claim that violence against women is widespread in the Democratic Republic of the Congo. In this regard, the Committee recalls its earlier decisions and its views in the case of Njamba and Balikosa v. Sweden (Communication No. 322/2007, decision of 14 May 2014, paragraph 9.5.), in which it was unable to identify a specific area of the Democratic Republic of the Congo that could be considered safe for the applicants. The Committee notes that reliable reports have recently been received, namely in the report of the United Nations High Commissioner for Human Rights on the human rights situation and on the activities of her Office in the Democratic Republic of the Congo for 2013 (A/HRC/24/33) and in the concluding observations of the Committee on the Elimination of Discrimination against Women According to the combined sixth and seventh periodic reports of the Democratic Republic of the Congo (CEDAW/C/COD/CO/6-7), it is indicated that violence against women is widespread, including rape by members of national armed groups, security and defense forces, which is most common in conflict-affected and rural areas of the country, especially in its eastern part. However, the Committee is concerned that, according to these reports, similar violence is also occurring in other parts of the country (paragraph 9.7 of the decision).
The Committee's conclusion: in this particular case, there are sufficient grounds to believe that the applicant would be in danger of being subjected to torture if she were returned to the Democratic Republic of the Congo (paragraph 9.8 of the decision).