opencaselaw.ch

CAT/C/27/D/156/2000

M.S. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2001-11-23 · en CH

Decision on merits; Articles: 3 (1) 3 (2); [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

Communication No 156/2000 : Switzerland. 11/13/2001.

CAT/C/27/D/156/2000. (Jurisprudence)

Committee Against Torture

Twenty-seventh session

12 - 23 November 2001

[PART OF ANNEX VII OF DOCUMENT A/57/44]

Views of the Committee Against Torture under article 22 of the

Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment

- Twenty-seventh session -

Complaint No. 156/2000

Submitted by: M.S. (name withheld) [represented by counsel]

Alleged victim: The complainant

State party: Switzerland

Date of complaint: 9 February 2000

The Committee against Torture, established under article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 13 November 2001,

Having concluded its consideration of complaint No. 156/2000, submitted to

the Committee against Torture under article 22 of the Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

Adopts the following:

Views under article 22, paragraph 7, of the Convention

1.1 The complainant is a Sri Lankan national of Tamil origin, born on 13 April

1979. He is currently in Switzerland, where he applied for asylum. His

application was turned down and he maintains that his expulsion to Sri Lanka

would constitute a violation by Switzerland of article 3 of the Convention

against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment. He asked the Committee to deal with his case as a matter of

urgency, as he was facing imminent expulsion when he submitted his complaint.

He was represented by counsel until 9 April 2001.

1.2 On 21 February 2000, in accordance with article 22, paragraph 3, of the

Convention, the Committee transmitted the complaint to the State party. At the

same time, the Committee, acting in accordance with rule 108, paragraph 9, of

its rules of procedure, requested the State party not to expel the complainant to

Sri Lanka while his complaint was under consideration. On 23 May 2000, the

State party informed the Committee that steps had been taken to ensure that the

complainant was not sent back to Sri Lanka while his complaint was under

consideration by the Committee.

The facts as presented by the author

2.1 The complainant states that, like most Sri Lankans of Tamil origin, he was

forced to work from a very early age for the Liberation Tigers of Tamil Eelam

(LTTE) movement, particularly in building bunkers and putting up propaganda

posters. He says that he had to flee from Kilinochchi to Colombo because he

refused to be more active in the movement.

2.2 The complainant maintains that he was arrested several times by the

government authorities in Colombo and sometimes held for over a fortnight and

that he was tortured on the grounds of being a member of the Tamil Tigers. He

says that he was taken before the court on several occasions, the first time being

on 15 March 1997, before being released shortly afterwards. He adds that he

was arrested again on 3 January 1999 by the Colombo police and detained for a

month before being brought before the court again on 10 February 1999.

According to the complainant, the judge released him only on condition that he

report every Saturday to the office of the Criminal Investigation Department

(CID) in order to sign a register.

2.3 The complainant states that he fled Sri Lanka on 28 March 1999 with the

help of a trafficker. He adds that, as a result of his flight, a warrant was issued

for his arrest, with reference to which a document issued by the Colombo police

was produced dated 23 August 1999. He arrived in Switzerland on 29 March

1999.

2.4 The complainant’s application for asylum in Switzerland, filed on 30 March

1999, was turned down on 18 August 1999. On 10 December 1999, in response

to an appeal lodged by the complainant on 21 September 1999, the Swiss

Appeal Commission on Asylum Matters upheld the original decision to refuse

asylum. The complainant was given until 15 January 2000 to leave the country,

but, on 10 January 2000, requested an extension of the deadline on health

grounds. On 20 January 2000, the Federal Office for Refugees found that those

grounds did not justify postponement, but decided to extend the deadline until

15 February 2000 to allow the author time to prepare his departure.

The complaint

3.1 The complainant states that his return to Sri Lanka would heighten the

suspicions of the local police that he was a member of the Tamil Tigers, so that

he would be in danger of being summarily arrested and tortured on arrival in

Colombo. According to the complainant, there is no doubt that any Sri Lankan

national of Tamil origin who has fled his country after being persecuted by

government forces is more likely to be tortured if he returns to the country.

3.2 The complainant refers to a report by Amnesty International dated 1 June

1999, according to which acts of torture carried out by the security forces are

reported on an almost daily basis in the context of the armed conflict with the

LTTE. According to the report, the problem also extends to routine policing,

with police officers regularly torturing criminal suspects. Thus, again according

to the same source, despite existing legal safeguards, torture continues to be

practised with relative impunity.

3.3 The complainant concludes that the argument that the persecution he had

suffered was not serious enough to entitle him to asylum is worthless when set

against the persecution that undoubtedly awaits him if he returns to Sri Lanka.

3.4 The complainant adds that he has been suffering from pleural tuberculosis

since May 1999. He states that he received anti-tubercular treatment between

May and December 1999 in the department of chest medicine at the teaching

hospital of the canton of Vaud, Switzerland. According to the complainant, the

doctors in this department believe that his clinical progress should be monitored

over the next two years, as the medical condition from which he is suffering

must be considered serious. The complainant claims that essential emergency

medical treatment might be necessary and that hospital conditions in Sri Lanka,

notwithstanding the contrary view of the Swiss Appeal Commission on Asylum

Matters, would not permit appropriate medical treatment.

Observations of the State party on the admissibility and merits of the

communication

4.1 The State party did not challenge the admissibility of the communication and

made its observations on the merits in a letter dated 21 August 2000.

4.2 The State party first of all considered the decision by the Swiss Appeal

Commission on Asylum Matters.

4.3 The State party notes that, although the Commission considered the appeal

to be manifestly ill-founded and hence could have been summarily rejected, it

nevertheless undertook to examine it in detail.

4.4 The State party recalls that the Commission, like the Federal Office for

Refugees, found that the complainant had not proved he had suffered serious

harm that might give him reason to fear, objectively and subjectively,

persecution if he returned to Sri Lanka. According to the State party, the

complainant has not in fact established that there is a personal, concrete and

serious risk that he will be subjected, if sent back to his home country, to

treatment prohibited under article 3 of the European Convention on Human

Rights and the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment. According to the State party, it follows

from the decision by the Swiss Appeal Commission on Asylum Matters that, in

the light of Switzerland’s international commitments, the return (“refoulement”)

of the complainant is lawful. The State party recalls that the Commission

rejected the arguments put forward by the complainant, who cited his state of

health in objecting to his refoulement.

4.5 Secondly, the State party considered the merits of the Commission’s

decision in the light of article 3 of the Convention and the Committee’s

jurisprudence.

4.6 The State party states that the complainant in his complaint merely recalls

the grounds he had invoked before the national authorities. According to the

State party, the complainant produces no new information that might call into

question the decision of the Federal Office for Refugees of 18 August 1999 and

the Commission’s decision of 10 December 1999. The State party asserts that

the complainant provides no explanation to the Committee of the inconsistencies

and contradictions in his allegations. On the contrary, according to the State

party, the complainant merely confirms them, since, for reasons unknown to the

Swiss authorities, he claims to have been arrested again on 3 January 1999 by

the Colombo police and then to have been brought before the court on 10

February 1999. The State party recalls that those claims were supposed to be

confirmed, according to the complainant, by the Colombo police document

dated 23 August 1999.

4.7 The State party finds these claims to say the least surprising, since during the

internal procedure, the complainant initially stated spontaneously that he had not

been arrested again by the police or the CID after April 1997. During the

hearing, however, the complainant claimed to have been arrested by the

People’s Liberation Organization Tamil Eelam (PLOTE) in February 1998.

According to the State party, it was only in his appeal to the Commission that

the complainant indicated, in a very vague way and completely contradicting his

earlier claims, that he had been arrested or detained by the police or the CID on

several occasions between February 1998 and his departure for Switzerland.

4.8 The State party points out that, although the document allegedly drawn up

by the Colombo police is dated 23 August 1999, the complainant never said that

he had been arrested in 1999 either during the above-mentioned hearings, or in

his appeal to the Commission of 21 September 1999, or in his letters to the

Commission dated 15 and 19 October 1999. According to the State party, it is

even more surprising that the complainant did not refer to this document in his

request for an extension of the 10 January 2000 deadline for his departure. The

State party points out that, since this document was never produced in the course

of the ordinary proceedings, the complainant could have called for a review of

the facts, but had not done so. The State party points out that such a review is

recognized as an effective domestic remedy within the meaning of article 22,

paragraph 5 (b), of the Convention. The State party is of the view that, in any

event, this document cannot be taken into account in the present case.

4.9 The State party explains that there is good reason to doubt the origin and

content of this document, which, again, was never produced before the national

bodies. The State party observes that it might be wondered why the complainant

is afraid of being prosecuted by the police when the latter obligingly provide

him with a document setting out in chronological order all the occasions on

which he claims to have been arrested. According to the State party, it would be

a strange police force indeed that was kind enough to provide a person it wished

to arrest with the very means of avoiding arrest. The State party concludes that

the 1999 arrest is obviously implausible and that the document supposedly

issued by the Colombo police, produced in the form of an uncertified copy, has

no probative value.

4.10 After recalling the Committee’s jurisprudence and its general comment on

the implementation of article 3, the State party states that, in the case under

consideration, the Swiss Government entirely agrees with the grounds given by

the Commission in support of its decision to turn down the complainant’s

application for asylum and to confirm his expulsion. With regard to article 3 of

the Convention, the State party wishes to point out, by way of a preliminary

remark, that according to the Committee’s jurisprudence (communication No.

57/1996,P.Q.L. v. Canada), this provision affords no protection to a complainant

who simply claims to fear arrest upon returning to his country. The same

conclusion applies a fortiori to the mere risk of arrest (communication No.

65/1997, I.A.O. v. Sweden). The State party recalls that, in the present case, the

complainant in fact claims that he would be arrested for not fulfilling his

obligation to report to the CID office once a week.

4.11 The State party asserts that it is because the arguments were persuasive that

the Commission considered the complainant’s claims to be lacking in

credibility. According to the State party, these arguments are not weakened by

the mere fact that the complainant is now transmitting to the Committee for the

first time a document which was allegedly issued by the Colombo police on 23

August 1999, according to which the complainant had been arrested again on 3

January 1999 and was wanted by the police for having failed to report to the

CID office. The State party points out that the complainant should have and

could have provided this information to the Swiss authorities during the internal

procedure, as an asylum-seeker is bound by a duty to cooperate. The State party

finds it particularly surprising that, when the complainant appeared before the

Swiss authorities he never mentioned his arrest on 3 January 1999, even though

this supposedly took place shortly before he left Sri Lanka. The State party adds

that the complainant also argues that he was subjected to torture while under

arrest and that the Sri Lankan authorities bound and beat him. However,

according to the State party, the Swiss doctors who examined the complainant

and administered his anti-tubercular treatment never reported any suspected

after-effects of acts of violence.

4.12 The State party explains that, quite apart from these inconsistencies, it

should be pointed out that the complainant’s allegations in connection with the

arrest on 3 January 1999 and the arrest warrant are implausible. During the

cantonal hearing, the complainant explicitly stated that, after his arrest in

Colombo by the PLOTE in February 1998, he was released “on condition that

he return immediately to Kilinochchi”, adding that members of the PLOTE “told

me not to return to Colombo”. If he had returned to Colombo, the complainant

would allegedly have been in danger of being “detained for longer, without

being brought before a court”. According to the State party, however, these

assertions with regard to the arrest by the Colombo police on 3 January 1999

and, especially, the judge’s order that the complainant be released on condition

that he report to the CID office every Saturday clearly lack credibility.

4.13 Lastly, the State party believes that the complainant’s explanations

concerning the way he left Sri Lanka need, at the very least, to be treated with

caution. The complainant does not explain, in particular, how he was able to

leave the country from Colombo airport although wanted by the police.

According to the State party, the extremely tight security controls in operation at

the airport would never have allowed the complainant to check in for the flight

and pass through police and border controls. The State party considers it

unlikely that he could, as he claims, have been assisted by a trafficker, who

allegedly told him not to speak to the customs officers and would have promised

to intervene if questions were asked. According to the State party, the facts show

that, on the contrary, there is no evidence that the complainant was being sought

by the police on the day of his departure, on 24 or 25 March 1999.

4.14 The State party concludes that there is therefore reasonable doubt as to

whether the complainant is wanted by the Sri Lankan authorities. It is also

unlikely that the author would be at risk of arrest if he returned to his country.

However, according to the State party, even if such a risk existed, it would not

be sufficient to conclude that there were substantial grounds for believing that

he would be in danger of being subjected to torture (communications Nos.

157/1996 and 65/1997).

4.15 With regard to the health grounds cited by the complainant, the State party

points out that the Commission took them into account. On the basis of two

medical certificates, it concluded that the basic anti-tubercular treatment had

been completed and that the complainant no longer suffered from any life-

threatening or health-threatening condition. According to the State party, the

new medical certificate dated 6 January 2000, on which the complainant based

his argument, merely confirms this conclusion. After consultations, the surgeons

who saw the patient decided not to perform a surgical decortication. The State

party adds that, even if an operation should prove necessary, which is not the

case at present according to the above-mentioned certificate, it could be

performed in Colombo. According to the State party, the same is true of the

health check-ups and any medical treatment the complainant might require. The

State party states that the Commission was therefore right to conclude that the

medical services available in Colombo could be considered satisfactory and able

if necessary to provide any treatment needed by the complainant.

4.16 In the light of the above arguments, the State party concludes that there is

nothing to suggest that there are substantial grounds for fearing that the

complainant would actually be personally at risk of torture on returning to Sri

Lanka. According to the State party, the complainant’s allegations also fail to

prove that sending him back to Sri Lanka would expose him to a real, concrete

and personal risk of being tortured.

Comments by the complainant on the State party’s observations

5.1 The complainant points out that the contradictions and inconsistencies found

in his allegations and cited by the Swiss Government to confirm the decision of

the Swiss Appeal Commission on Asylum Matters should be seen in the context

of the way in which he was heard by the Swiss authorities when he arrived. In

this respect, the complainant states that he was seriously ill with tuberculosis

and that he was in an extremely weak condition when he had to answer all the

questions of the Swiss authorities. The complainant asserts that, given his

condition, it is obvious that certain details might have been forgotten or badly

explained and that, moreover, six months after his arrival he had needed to be

hospitalized for three weeks.

5.2 The complainant then contests the arguments of the Federal Office for

Refugees casting doubt on his flight from Colombo, stating that he had called on

the services of a trafficker precisely to avoid police and customs controls at

Colombo airport.

Issues and proceedings before the Committee

6.1 Before considering a complaint, the Committee against Torture must decide

whether or not it is admissible under article 22 of the Convention. The

Committee has ascertained, as it is required to do under article 22, paragraph 5

(a), of the Convention, that the same matter has not been and is not being

examined under another procedure of international investigation or settlement.

In this case, the Committee also notes that all domestic remedies have been

exhausted and that the State party has not contested admissibility. It therefore

finds the complaint admissible. Since both the State party and the complainant

have provided observations on the merits of the complaint, the Committee

proceeds with the consideration of the merits.

6.2 The issue before the Committee is whether the expulsion of the complainant

to Sri Lanka would violate the State party’s obligation under article 3 of the

Convention not to expel or return a person to a State where there are substantial

grounds for believing that he or she would be in danger of being subjected to

torture.

6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether

there are substantial grounds for believing that the complainant would be in

danger of being subjected to torture if returned to Sri Lanka. In reaching this

decision, the Committee must take into account all relevant considerations,

pursuant to article 3, paragraph 2, 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 be returned. It follows that the existence of a consistent pattern of gross,

flagrant or mass violations of human rights in the country does not by itself

constitute a sufficient ground for determining that a particular person would be

in danger of being subjected to torture upon returning to that country. There

must be other grounds indicating that he or she 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 subjected to torture in his or her specific

circumstances.

6.4 The Committee recalls its general comment on the implementation of article

3, which reads as follows: “Bearing in mind that the State party and the

Committee are obliged to assess whether there are substantial grounds for

believing that the author would be in danger of being subjected to torture were

he/she to be expelled, returned or extradited, the risk of torture must be assessed

on grounds that go beyond mere theory or supposition. However, the risk does

not have to meet the test of being highly probable” (A/53/44, annex IX, para.

229).

6.5 In the present case, the Committee notes that the State party has drawn

attention to inconsistencies and contradictions in the complainant’s account,

casting doubt on the truthfulness of his allegations. It also takes note of the

explanations provided by counsel in this respect.

6.6 The Committee also notes that it has not been clearly established that the

complainant was wanted by the Sri Lankan police or CID or that the Colombo

police document be provided as evidence was genuine, it being indeed

surprising that this document, dated 23 August 1999, was never shown to the

Swiss authorities, even when the complainant applied to have the 20 January

deadline for his departure extended.

6.7 Furthermore, the Committee believes that there is insufficient support for the

complainant’s allegations of having been tortured in Sri Lanka and that, in

particular, his allegations are not corroborated by medical evidence, even though

the complainant received medical treatment in Switzerland shortly after his

arrival.

6.8 The Committee is aware of the seriousness of the human rights situation in

Sri Lanka, and of reports alleging the practice of torture there. However, it

recalls that, for the purposes of article 3 of the Convention, a foreseeable, real

and personal risk must exist of being subjected to torture in the country to which

a person is returned. On the basis of the considerations above, the Committee is

of the opinion that such risk has not been established.

6.9 The Committee against Torture, acting under article 22, paragraph 7, of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, concludes that the decision of the State party to return the

complainant to Sri Lanka does not constitute a breach of article 3 of the

Convention.