CAT/C/74/D/868/2018

GE.22-26348 (E) 200623 200623

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 868/2018*, **

Communication submitted by:

A.R. (represented by counsel, Jacques Emery)

Alleged victim:

The complainant

State party:

Switzerland

Date of complaint:

26 April 2018 (initial submission)

Document references:

Decision taken pursuant to rules 114 and 115 of

the Committee’s rules of procedure, transmitted

to the State party on 3 May 2018 (not issued in

document form)

Date of adoption of decision:

21 July 2022

Subject matter:

Deportation to the Islamic Republic of Iran

Procedural issue:

Exhaustion of domestic remedies

Substantive issues:

Non-refoulement; risk of torture upon return to

country of origin

Article of the Convention:

3

1.1

The complainant is A.R., a national of the Islamic Republic of Iran born in 1990. He

was refused asylum in Switzerland and is now subject to an order of deportation to the Islamic

Republic of Iran. He claims that his return would constitute a violation by the State party of

article 3 of the Convention. The State party made the declaration provided for in article 22

(1) of the Convention on 2 December 1986. The complainant is represented by counsel.

1.2

On 3 May 2018, pursuant to rule 114 of its rules of procedure, the Committee, acting

through its Rapporteur on new complaints and interim measures, asked the State party not to

expel the complainant while his complaint was being considered. The State party complied

with the request for interim measures and decided not to return the complainant while the

complaint was under consideration by the Committee.

1.3

On 18 February 2020, pursuant to rule 115 (3) of its rules of procedure, the Committee,

acting through its Rapporteur on new complaints and interim measures, denied the State

party’s request for the admissibility of the communication to be examined separately from

the merits and its requests of 18 June and 22 October 2018 for the interim measures to be

lifted.

* Adopted by the Committee at its seventy-fourth session (12–29 July 2022).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Claude Heller, Erdogan Iscan, Maeda Naoko, Ilvija Pūce, Ana Racu, Abderrazak

Rouwane, Sébastien Touzé and Bakhtiyar Tuzmukhamedov.

United Nations

CAT/C/74/D/868/2018

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

21 November 2022

English

Original: French

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Facts as submitted by the complainant

2.1

The complainant belongs to a family of moderate, non-practising Muslims who have

never been interested in politics. He was a student at the Free University of Damavand, where

he embarked on an undergraduate degree in industrial management in September 2010.

During 2013, alongside his studies, he gave private lessons in physics and mathematics to

secondary school students. He knew nothing about the religious practices of his students.

2.2

In April 2014, the complainant travelled to Bern with his father for a vacation and to

visit his aunt. After just over two weeks away, he returned to the Islamic Republic of Iran

with his father. He posted photos from his vacation in Switzerland on one of his social media

accounts.

2.3

In November 2014, during a mandatory class on Islamic thought, the complainant and

two of his friends shared their views on Islam, Muslim radicalism, non-believers and infidels.

Members of an Islamic student association insulted and threatened them in response. The

argument escalated into a physical confrontation after class. The complainant tried in vain to

pull away two of his friends who were brawling with four or five members of the Islamic

student association.

2.4

Members of the university’s protection unit (Herasat) became involved and took the

complainant and his two friends to their offices. They also contacted the police, and the group

was then taken to the police station and held in detention for two days. The members of the

Islamic student association were not arrested. The complainant and his friends were rebuked

for having disturbed the order of the university and having engaged in religious discussions

unrelated to classes. Before being released, they had to give a written undertaking to the

university that they would not be involved in any further quarrels, failing which they would

not be allowed to complete their university course.

2.5

Around 18 January 2015, men in civilian clothing who claimed to be officers of the

Sepah, also known as the Islamic Revolutionary Guard Corps or Pasdaran, forced the

complainant into their unmarked vehicle. They showed him a warrant drawn up by the bailiffs

of the competent court. The warrant had no reference number or date; no reason for arrest

was indicated; only the complainant’s name, written by hand, and a signature appeared on

the document. During the journey, the Sepah officers tied the complainant’s hands behind his

back, blindfolded him and forced him to put his head between his knees.

2.6

When the complainant arrived at the detention facility, the handcuffs and blindfold

were removed. He was placed in a dirty cell in the basement, where he remained alone,

without light, for around four days. He was then interrogated several times by men who

usually wore balaclavas. During these interrogations, he was subjected to psychological

pressure and physical torture. He was severely beaten: he was struck with sticks, plastic pipes,

cables and ropes; he was kicked in the shins; a pencil was placed between his fingers and the

bones in his hand crushed; wet cloths were placed over his face until he began to suffocate;

his head was immersed in buckets of dirty water; he was suspended by the shoulders; he was

beaten on the soles of his feet; electric shocks were given to him via clamps attached to his

thumbs, crushing his nails; he was stripped naked, threatened with sexual violence and led to

believe that he would be sodomized with a baton; and he was subjected to a mock execution.

The complainant still lives with the after-effects of this abuse, 1 some of which remain

visible.2

2.7

Between interrogations, the complainant was returned to a tiny, damp cell, which had

no windows but was continuously and brightly lit. The stench was appalling, and the screams

of fellow inmates being interrogated could be heard constantly. He was questioned about his

knowledge of religion, his level of religious observance and that of his family members. He

was accused of apostasy from Islam, which is forbidden and is punishable by death under

Islamic law, of having taught members of the Baha’i community, which is banned under

Iranian law, and of himself having become a member of that community and of having visited

1 These include pains in the soles of his feet and ankles.

2 His back is streaked with more than a dozen scars from being struck with whips and ropes, and he has

a “saucer-shaped” deformity on his fingernails from having his fingers clamped.

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the Baha’i secretariat in Switzerland, which is based in Bern. He was also accused of being

a spy for Israel, as, in the Islamic Republic of Iran, members of the Baha’i community are

suspected of working for Israel. Lastly, he was told that some of his students who had been

arrested had denounced him.

2.8

While the complainant was in detention, his relatives and friends used their

connections to make contact with influential people who were able to arrange his escape by

bribing the guards with a sum equivalent to 20,000 Swiss francs. The escape took place on

25 February 2015, while the complainant was at the Revolutionary Court in Tehran and was

awaiting his hearing.

2.9

The complainant was taken to the city of Orumiyeh, where he stayed for a few days,

confined to a house, onward to the city of Salmas, where he stayed for another few days, and

then to a village located near the border with Türkiye, where he stayed for a further six or

seven days. He subsequently spent nearly a month in Türkiye, where he was able to re-

establish contact with his parents over the Internet. The complainant eventually left Türkiye

by truck and was dropped off near the Swiss border, which he crossed on foot on 15 April

2015.

2.10

On 22 April 2015, the complainant filed an application for political asylum with the

State Secretariat for Migration. On that occasion, several questions of a general nature were

put to him during a rather short hearing. The hearing was conducted in German, and the

complainant was unable to verify the quality of the interpretation.

2.11

The complainant is suffering from post-traumatic stress and depression following the

events that he experienced in his country of origin, as noted in a medical certificate, dated 3

February 2016, drawn up by a physician who specializes in working with victims of

organized violence, and in a certificate, dated 12 December 2016, drawn up by a Farsi-

speaking psychiatrist and psychoanalyst, both of whom have treated him since his arrival in

the State party in 2015.3 The psychiatrist mentioned that it would be preferable if this clinical

condition was taken into account in the event that the complainant was interviewed. The

complainant notes that the interpreter present when his hearing took place was so

incompetent and provided so many imprecise renderings – which, having acquired a good

knowledge of French since his arrival in Switzerland, he was able to identify – that the State

Secretariat was forced to stop the interview and summon the complainant to an additional

hearing. It was because of a translation problem involving verb tenses, which had distorted

the meaning of a sentence, that the investigator decided to end the hearing. The complainant

had himself corrected the error, in French, during the interview. A second hearing was held

on 15 March 2017.

2.12

On 16 June 2017, the State Secretariat rejected the complainant’s asylum application,

as it considered that there were inconsistencies in his statements, particularly with regard to

the reasons for his arrest. The State Secretariat also noted that the complainant had been

unable to produce his identity documents.

2.13

On 21 August 2017, the complainant appealed this decision to the Federal

Administrative Court. In support of his application, he submitted documents including a new

certificate from his psychiatrist, dated 7 July 2017, which stated that his condition caused

him to experience dissociative amnesia and concentration problems.

2.14

In a decision of 25 August 2017, the Court declared the appeal inadmissible because

it was brought out of time. The complainant notes that, rather than being his fault, this delay

was the fault of one of his counsel’s colleagues. He then filed an application for extension of

time and an appeal with the Court on 30 August 2017. The appeal was rejected on 19

September 2017, as the Court considered that negligence on the part of the agent was not

sufficient to justify such an extension. At the same time, on 31 August 2017, the complainant

filed an application for review with the State Secretariat, to which he attached new evidence.

This application was rejected on 23 October 2017, as the State Secretariat considered that

there was nothing in the new evidence filed that was liable to alter its prior findings. On 7

November 2017, the complainant appealed this decision to the Court. In support of his appeal,

3 These documents are included in the case file.

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he submitted a medical report drawn up by the same physician who specializes in working

with victims of organized violence, dated 19 September 2017, in which it was noted, inter

alia, that he had multiple fine scars on his back and deformities on both thumbnails and that

these were consistent with being struck with a whip or rope and having clamps attached to

the thumbs. On 21 February 2018, the Court rejected the complainant’s appeal, as it

considered that it was ill founded, particularly as the new evidence was not decisive. The

Court considered that the medical certificate of 19 September 2017 had no evidentiary weight,

since the diagnosis was based solely on the complainant’s account and merely set out the

view that the injuries and problems identified were consistent with the alleged abuse without

actually demonstrating the link.

Complaint

3.1

The complainant alleges a violation by the State party of article 3 of the Convention

because a return to the Islamic Republic of Iran would lead to his immediate arrest, which

would entail a risk of torture or cruel, inhuman or degrading treatment, in that: (a) he has

been accused of apostasy, which is punishable by death, of having taught members of the

Baha’i community, which is banned under Iranian law, of having become a member of that

community himself and of being a spy for Israel; (b) he sought asylum in the State party,

which reinforces the theory that he is an agent of the West; and (c) he has already attracted

the attention of the Iranian authorities, who arrested and tortured him.

3.2

The complainant notes that the after-effects and injuries resulting from the intense

torture to which he was subjected before the trial hearing are documented in the medical

certificates that he produced. To supplement the evidence of the torture to which he was

subjected in the Islamic Republic of Iran, he provides the Committee with an addendum to

the medical report of 19 September 2017 – dated 22 March 2018 and therefore subsequent to

the final decision of the Federal Administrative Court – in which it is noted that the causal

link between the complainant’s statements and the clinical picture is plausible with a high

likelihood of being true. He refers in particular to the many fine linear scars on his back,

which are consistent with having been beaten with electric cables or ropes, to the saucer-

shaped depressions on his nails, which are consistent with electric shocks given via clamps

attached to his thumbs, and to the pains in the soles of his feet and ankles and the resulting

reduction in mobility, which are compatible with having been beaten on the soles of the feet.

The complainant considers that he has provided the authorities with sufficient evidence that

he had been a victim of torture. He adds that a State party that deems an asylum application

unfounded and decides to return a complainant, without having sufficiently investigated or

acted on the evidence that he or she has provided, is in violation of article 3 of the

Convention.4

3.3

The complainant also notes that, throughout the asylum process, the State party was

wedded to a one-sided and biased reading of the case and an excessively formalistic reading

of his statements. The State party decided to disregard from the outset all his offers of

evidence and explanations, in particular medical evidence that was nevertheless sound, on

the basis that there were initially some inconsistencies in his statements, without considering

whether the state of the complainant’s health, which had been documented and was visible

during the hearings, and to which the State party had been alerted, might not explain why the

complainant had not managed to express himself as accurately as was expected of him.

3.4

The complainant states that the inaccurate dates and chronology highlighted by the

State Secretariat for Migration can be attributed to the fact that he was interviewed for the

first time on 22 April 2015, a few days after his arrival in Switzerland and shortly after he

had been tortured, at a time when he was experiencing post-traumatic stress.

3.5

The complainant also explains that the most significant inconsistencies identified by

the authorities stem from problems of translation from Farsi into German.

3.6

Lastly, the complainant adds that the State party has not taken into account the context

of his asylum application, namely the general human rights situation that prevails in the

4 A.S. v. Sweden (CAT/C/25/D/149/1999), para. 8.6.

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Islamic Republic of Iran and has only worsened since 2009, given how real or perceived

opponents or rejected asylum-seekers are treated in the country.5

State party’s observations on admissibility and the merits

4.1

On 18 June and 22 October 2018, the State party submitted its observations on

admissibility and the merits.

4.2

According to the State party, the complainant has not met the requirement of having

exhausted domestic remedies. The appeal that he filed with the Federal Administrative Court

was found to be inadmissible because it was late. The State party notes that, in accordance

with the Committee’s jurisprudence, the complainant cannot use his counsel’s negligence as

an excuse for eschewing his obligation to exhaust domestic remedies.6 It also notes that the

application for extension of time, which the complainant submitted to the Court on 30 August

2017, concerns a mere formality and therefore cannot be considered to have triggered a

redress mechanism.

4.3

In addition, according to the State party, the appeal filed by the complainant against

the decision of the State Secretariat for Migration to reject his application for review allows

only for a determination of whether the evidence supplied in support of that application

contains significant new elements liable to affect the outcome of the challenge in respect of

the findings set out in the State Secretariat’s decision. The State party considers that the

certificates provided, which were written by his relatives, were drawn up solely for the

purposes of the case. It also considers that the new medical certificates submitted after the 16

June 2017 decision of the State Secretariat to reject the asylum application merely reproduce

the findings of the medical reports already examined by the State Secretariat. Lastly, the State

party considers that the application for review is merely an attempt to remedy the failure to

meet the deadline for appealing the State Secretariat’s decision of 16 June 2017.

4.4

Regarding the merits, the State party notes that, with the exception of an addendum,

dated 22 March 2018, to a medical report of 19 September 2017, which was drawn up by a

general practitioner who specializes in working with victims of organized violence, all the

evidence made available to the Committee has already been submitted to the competent

national asylum authorities. The complainant has thus provided no new information that

could call into question their decisions.

4.5

The State party is aware that the human rights situation in the Islamic Republic of Iran

is a matter of concern in many respects. However, the general situation in the country does

not, in itself, constitute sufficient grounds to conclude that the complainant would be at risk

of torture if he was returned there. 7 In addition, the paragraphs below show that the

complainant has not adduced evidence that he would face a foreseeable, real and personal

risk of torture if deported to the Islamic Republic of Iran.

4.6

The State party notes that the complainant claims that he was subjected to acts of

torture and has provided details in his complaint along with supporting evidence. In this

regard, the State Secretariat recalled, in its decision of 16 June 2017, that a medical certificate

documenting the after-effects of ill-treatment could be considered relevant only insofar as the

overall account given by the person concerned of the persecution alleged and inflicted was

considered credible. However, in the present case, the State Secretariat found that the

complainant was not able to lend credibility to his statements. In these circumstances, the

medical findings set out in the medical certificate cannot be taken into account and are not in

themselves liable to alter the State Secretariat’s assessment. As for the scars on the

complainant’s body, the Federal Administrative Court noted that he had shown them to the

5 See, inter alia, Human Rights Watch, World Report 2017, pp. 334–339; Iran Human Rights

Documentation Center, “Apostasy in the Islamic Republic of Iran”, 25 September 2014; and Fiorenza

Kuthan, “Iran: Traitement des requérants d’asile déboutés” (Iran: Treatment of rejected asylum-

seekers), Swiss Refugee Council, 18 August 2011.

6 Y. v. Canada (CAT/C/55/D/512/2012), para. 7.4; and H.E.-M. v. Canada (CAT/C/46/D/395/2009),

para. 6.3.

7 Azizi v. Switzerland (CAT/C/53/D/492/2012), para. 8.3.

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State Secretariat during his hearing on 15 March 2017 but that they were mentioned neither

in the medical certificate of 3 February 2016 nor in that of 12 December 2016.

4.7

The State party adds that the complainant claims that he would be at risk of torture if

returned to the Islamic Republic of Iran because he was accused of teaching Baha’i children,

adopting their religion, disturbing public order, being an apostate and spying for foreign

Powers, accusations that led to his arrest in January 2015. The State party’s asylum

authorities considered these allegations and found them not to be credible. The State party

adds that, in its decision of 16 June 2017, the State Secretariat noted that, in his various

statements, the complainant had given divergent accounts of the circumstances leading to the

filing of charges against him in the Islamic Republic of Iran, despite the fact that these

circumstances constituted a key part of his argument.

4.8

For example, at his first hearing, the complainant stated that his problems had begun

when he had stood up for the rights of Baha’i children to attend mainstream schools in a

student discussion during a class at the university. However, at the last hearing, the

complainant explained that the accusations against him were based on allegations made by

persons of the Baha’i faith and not on real events.

4.9

Moreover, during his hearing on 15 March 2017, the complainant claimed that he had

not been directly involved in the quarrel at the university and had intervened only to separate

those who were fighting, namely two of his friends and members of an Islamic student

association. He explained that he could not remember when the quarrel had occurred or

exactly what it had been about. He added that he had not had any subsequent problems with

these students.

4.10

Added to these obvious discrepancies are the complainant’s inconsistent statements

regarding his alleged activities as a private tutor for children of the Baha’i faith. During his

first hearing, the complainant not only clearly mentioned that, during a class at the university,

he had expressed support for the rights of such children in the context of schooling, but also

stated unequivocally that, when leaving the home of a Baha’i family where he had just given

lessons, he had been spotted by a student belonging to the Islamic student association.

However, during his additional hearing, he gave altogether different explanations: he stated

that he had not even been aware of the existence of the Baha’i religion until the day of his

arrest.

4.11

The State Secretariat noted that, consequently, the complainant’s statements regarding

the reasons for his arrest and the institution of legal proceedings against him were at best

inconsistent and therefore could not be considered likely to be true. As a result, the State

Secretariat noted that the credibility of the complainant’s statements regarding his alleged

escape was also undermined.

4.12

The State Secretariat noted other signs that the complainant’s allegations, in particular

those relating to the exact date of his arrest and the circumstances surrounding his departure

for Orumiyeh, are not true. In addition, his unconvincing explanations regarding the lack of

any document that could establish his identity led the State Secretariat to conclude that, by

not producing such documents, the complainant was probably trying to conceal the real

circumstances of his arrival in the State party.

4.13

The State party agrees that trauma can affect the thinking and memory of torture

victims, particularly with regard to the chronology of events, and that memories can change

with the passage of time. Nevertheless, it considers that the inconsistencies noted in the

accounts given by the complainant during his various hearings do not concern mere

discrepancies in dates but rather the key elements of his complaint, namely the events that

led to his alleged persecution by the Iranian authorities.

4.14

Lastly, the State party notes that, in his complaint, the complainant seeks to

demonstrate that errors involving Farsi verb tenses or a poor translation gave rise to the

inconsistencies noted by the State Secretariat. This argument and the additional information

provided in this connection are not convincing. In this regard, it is sufficient to examine the

record of the statements that he made at his first hearing in 2015 to note with surprise that

the complainant did not detect any of the many alleged errors when his words were translated

back to him at the end of the hearing.

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Complainant’s comments on the State party’s observations

5.1

On 9 August 2018, the complainant submitted his comments on the State party’s

observations on admissibility. According to him, the application for review of 31 August

2017 and the appeal of 7 November 2017 against the decision to reject that application were

found to be admissible by the State Secretariat for Migration and the Federal Administrative

Court, thus giving rise to a consideration of the merits of the case, including a consideration

of the translation problems and the post-traumatic stress experienced by the complainant

during the first interview with the State Secretariat.

5.2

According to the complainant, the argument that the review procedure does not allow

for the exhaustion of domestic remedies does not hold. He explains that, in another case

relating to the asylum procedure, the Committee considered that domestic remedies needed

to be exhausted only in respect of a second asylum application and not also in respect of the

first.8

5.3

Furthermore, the complainant notes that he put forward new evidence: (a) in his appeal

of 21 August 2017, before the Federal Administrative Court, against the decision to reject his

asylum application of 22 April 2017; (b) in his application for review of 31 August 2017

before the State Secretariat; and (c) in his appeal of 7 November 2017, before the Court,

against the decision to reject the application for review. The complainant invokes the fact

that the Court and the State Secretariat dismissed as having no evidentiary weight the

additional medical reports showing that his allegations of torture and post-traumatic stress

are likely to be true. He also cites the fact that the interpreters were unreliable and that

translation errors were made during the interviews with the State Secretariat.

5.4

On 8 February 2019, the complainant submitted comments on the State party’s

observations, dated 22 October 2018, on admissibility and the merits. He notes that it would

be contrary to the purpose and spirit of the Convention to hold that only asylum-seekers who

have exhausted domestic remedies in respect of a first application under the ordinary

procedure were protected and could file a complaint with the Committee. In any event, such

an interpretation has already been rejected by the European Court of Human Rights, including

in its judgment in Polidario v. Switzerland,9 where, in the case of a complainant who had not

filed an appeal under the ordinary procedure, the European Court held that the chosen review

procedure allowed for domestic remedies to be adequately exhausted within the meaning of

the Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights).

5.5

The Committee, notably in the case of Jahani v. Switzerland,10 has considered that the

fact that a complainant who had filed a second asylum application related to the first had not

filed an appeal in respect of the first application did not prevent the Committee from

examining a complaint based on the claims made in that second application.

5.6

The complainant notes that the supposedly numerous discrepancies identified by the

State Secretariat were in fact limited to four more or less contiguous problematic sentences.

First, and contrary to the State Party’s claims, the errors identified were few in number; there

was a clearly defined and localized error relating to a mistranslation of the verb structure of

three or four sentences from Farsi into German. In addition, there is no doubt that the record

of the interview contains a number of imprecise renderings, which fortunately had no

consequences.

5.7

The complainant goes on to note that it was not disputed – and is in fact indisputable

– that, in his 2017 cantonal hearings, he was able to provide a complete and convincing

account of his arrest and torture in his country of origin. It was not disputed that the

problematic sentences, which were presented in the record of the first hearing as actual facts,

corresponded almost word for word to what the complainant had described, at subsequent

hearings, as the accusations made against him by the secret police. The State party’s

authorities should therefore not have rejected the application without further investigation.

8 Jahani v. Switzerland (CAT/C/46/D/357/2008), para. 8.2.

9 European Court of Human Rights, Polidario v. Switzerland, application No. 33169/10, judgment, 30

July 2013, paras. 49–52.

10 Jahani v. Switzerland, para. 8.2.

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Simple common sense should have told them to investigate further by ordering a

complementary medical examination, which they always refused to do.

5.8

Furthermore, the Committee has repeatedly reminded the State party that identifying

supposed inconsistencies in a complainant’s account is insufficient for a conclusion that there

is no risk of torture in the event of forced return; it is merely one criterion among others, and

an overall analysis of the case is always necessary.11 In addition, it was not acceptable for the

State party to maintain its position when a detailed and convincing explanation and written

statements had been provided to explain how the error had come about.

5.9

On 20 June 2019, the complainant reported the incompetence and bias of the

interpreters working for the State Secretariat.

State party’s additional observations

6.

On 14 August 2020, the State party submitted additional observations, noting that the

complainant’s comments dated 8 February and 20 June 2019 contained nothing that called

its position into question. In particular, the State party explains the selection process for

interpreters.

Complainant’s comments on the State party’s additional observations

7.

In his comments of 21 December 2021, the complainant reiterated the arguments

made in his initial submission. Moreover, he considers that the interpreters are neither trained

to deal with situations that fall outside the typical parameters of an asylum-seeker’s hearing

nor capable of doing so.

Issues and proceedings before the Committee

Consideration of admissibility

8.1

Before considering any complaint submitted in a communication, the Committee must

decide whether it is admissible under article 22 of the Convention. The Committee has

ascertained, as it is required to do under article 22 (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.

8.2

The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it

may not consider any communication from an individual unless it has ascertained that the

individual has exhausted all available domestic remedies. In the present case, it notes the

State party’s argument that the complainant has not exhausted the available remedies because

the appeal filed with Federal Administrative Court was found to be inadmissible for having

been submitted late and that the application for extension of time filed by the complainant

with the Court on 30 August 2017 concerns only a formal aspect and therefore cannot be

considered to have triggered a redress mechanism. The Committee takes note of the

complainant’s argument that the late submission is attributable not to him but to his counsel.

However, the Committee recalls that errors made by private counsel cannot in principle be

attributed to the State party.12 In the present case, the Committee notes that the complainant

has not provided sufficient justification for the late filing of his appeal with the Court. It

therefore considers that the complainant did not exercise due diligence by exhausting the

remedies available to him in time and that he is not in a position to attribute the fault to the

State party.13

8.3

The Committee concludes that the available remedies were not exhausted and that the

communication is therefore inadmissible under article 22 (5) (b) of the Convention.

11 In this regard, see in particular Fadel v. Switzerland (CAT/C/53/D/450/2011).

12 R.S.A.N. v. Canada (CAT/C/37/D/284/2006), para. 6.4.

13 D.B. v. Switzerland (CAT/C/66/D/820/2017), para. 6.3.

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8.4

The Committee therefore decides:

(a)

That the communication is inadmissible under article 22 (5) (b) of the

Convention;

(b)

That the present decision shall be communicated to the complainant and to the

State party.