PARTLY DISSENTING OPINION OF JUDGE MARUSTE

I did not find a violation of Article 3 of the Convention in this case, because I did not find the account put forward by the applicant very credible. Moreover, I did not share the assessment of the possible risk the applicant would run, if returned to his country of origin. In essence this is a case of assessment of credibility and risk and I believe that in such situations the domestic authorities are much better placed than international judges. Th ere is no need therefore to go through all arguments put forward by the applicant. As an example of my suspicions, however, suffice it to note his different identities ( four altogether) , the lack of any documentary evidence about his position and activities in the DRC and the uncertainty about his knowledge of local languages.

I have confidence in Mr. Heinonen ’ s assessment of the situation in the DRC as he has visited the country to ascertain the facts on the ground . In light of h is finding s (see § 104 of the judgment) as well as those of UNCHR I consider that the current DRC authorities ’ interest in the applicant for the purpose of detaining and possibly ill-treating him due to his past activities in the country must be assumed to have diminished with the passage of time, including a further coup d ’ état in 2001. This finding is supported by the most recent assessments of the human rights situation in the DRC and of the groups of asylum seekers deemed to be of particular interest to the current regi me, if returned to the country (see, in particular, § 122 of the judgment) .

It has to be noted further more that according to his own account the applicant had never been in direct contact with President Mobutu and had not attained any senior military rank when forced to leave the country. It is true that the U NHCR and other reports indicate , in respect of former FAZ members, that factors other than rank – such as the soldier ’ s ethnicity or connections to influential persons – may also be of importance when considering the risk he or she might be facing if returned to the DRC . Of course the country is still unpredictable and there is always a certain risk, but according to my understanding and the information available, the risk of possible ill-treatment is not imminent and real.

Even if decisive regard were to be had to the applicant ’ s specific activities as an infiltrator and informant reporting directly to very senior-ranking officers close to Mobutu, he would not to my mind, on account of such activities, remain at any substantial risk o f treatment contrary to Article 3 if expelled to the DRC today, that is to say over eight years after Mobutu ’ s regime was toppled. I would also note the reports to the effect that a number of Mobutu supporters have been returning voluntarily to the DRC in the recent years (see § 122 of the judgment ). Moreover, even assuming that relatives of dissidents during Mobutu ’ s regime might, to this day, wish to seek revenge on former Mobutu collaborators, any risk of treatment contrary to Article 3 emanating from such individuals must be considered insignificant for the purposes of this provision.

In these circumstances, and having assessed all the material before the Court , I have reached conclusion that sufficient evidence has not been adduced to establish substantial grounds for believing that the applicant would be exposed to a real risk of treatment contrary to Article 3, if expelled to the DRC . Accordingly, the enforcement of the order issued to that effect would not violate that provision.