Decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.24-14688 (E) 270924 300924
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1064/2021*, **
Communication submitted by:
K.A. (represented by counsel, Olivier Bigler)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
11 March 2021 (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 22 March 2021 (not issued
in document form)
Date of adoption of decision:
15 July 2024
Subject matter:
Deportation to Togo
Procedural issues:
None
Substantive issue:
Risk of torture or other cruel, inhuman or
degrading treatment if deported to country of
origin
Articles of the Convention:
3, 14 and 16
1.1
The complainant is K.A., a national of Togo born in 1985. He is facing deportation to
Togo and is of the view that his return by the State party, without his state of health having
been taken into account, would constitute a violation of articles 3, 14 and 16 of the
Convention. The State party made the declaration under article 22 (1) of the Convention on
2 December 1986. The complainant is represented by counsel.
1.2
On 22 March 2021, the Committee, acting through its Rapporteur on new complaints
and interim measures, decided not to accede to the complainant’s request for interim
measures.
* Adopted by the Committee at its eightieth session (8–26 July 2024).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu and Bakhtiyar Tuzmukhamedov.
United Nations
CAT/C/80/D/1064/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
3 September 2024
English
Original: French
CAT/C/80/D/1064/2021
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Factual background1
2.1
The complainant claims that he is one of the leaders of the Alliance nationale pour le
changement (National Alliance for Change), a Togolese opposition party. On 27 April 2012,
he took part in a demonstration calling for, among other reforms, the reinstatement of the
1992 Constitution and presidential term limits. He was arrested by law enforcement officers
and then released following the intervention of members of his party. On 12 June 2012, at
another demonstration organized by the Collectif Sauvons le Togo (Let’s Save Togo
Collective) and the Alliance nationale pour le changement, he was arrested again and taken
to an unofficial place of detention. The complainant was interrogated by a General Yark, who
threatened him owing to his organization of demonstrations against the Togolese authorities.
During his detention, the complainant was beaten by his jailers, who also tortured him by
inflicting cigarette burns. He was also sodomized by his jailers on two or three occasions.
After 10 days in detention, he was able to escape thanks to a jailer who was in contact with
his father. His father negotiated his release in return for a sum of money.2 The complainant
spent a few days in Cotonou before boarding a flight to Switzerland on 5 July 2012 using a
false passport.
2.2
On 6 July 2012, the complainant applied for asylum in Switzerland. On 17 July 2012,
he was interviewed in order to provide his personal details. On 26 August 2014, he was
interviewed about his reasons for claiming asylum. On 2 September 2014, the Federal Office
for Migration rejected his asylum application on the grounds that his statements were not
plausible within the meaning of article 7 of the Asylum Act (No. 142.31 of 26 June 1998).
The complainant’s appeal against this decision was rejected by the Federal Administrative
Court in a judgment issued on 26 March 2015. On 8 May 2015, the complainant filed an
initial application for review, arguing that he had been sexually abused on three occasions
during his detention in June 2012 and had health problems. This initial application for review
was rejected by the State Secretariat for Migration on 30 June 2015.3 In a judgment issued
on 19 August 2015, the Court upheld this decision and dismissed the complainant’s appeal.
On 14 January 2016, the complainant filed a second application for review. On 9 February
2016, this application was rejected by the State Secretariat, which was not convinced by the
evidence submitted, namely that the complainant was still wanted in Togo4 and had health
problems that would represent an obstacle to his deportation to his country of origin. In a
judgment issued on 31 March 2016, the Court declared the application to be inadmissible
owing to the fact that the advance payment of costs requested had not been received. Lastly,
on 14 October 2020, the complainant submitted a third application for review, which was
rejected by the State Secretariat on 24 November 2020. In a judgment issued on 12 January
2021, the Court declared this application to be abusive and manifestly inadmissible. In this
judgment, the judge declared that all applications for review on the same grounds would be
considered an abuse of process and should be dismissed without a formal decision and that
the costs of examining them would be borne by the complainant’s counsel.
Complaint
3.1
The complainant alleges that, in the event of his return to Togo, where he risks being
subjected to torture and other inhuman and degrading treatment, the State party would be in
violation of its obligations under article 3 of the Convention. He also claims that the State
party failed to adequately examine his allegations of torture owing to the supposed
implausibility of his account and ignored the evidence he subsequently added to the case file,
which included numerous medical reports, summonses from the Togolese judicial authorities
and third-party statements attesting to the risk he would face if returned to Togo. 5 The
complainant alleges that, should the State party refuse to provide him with medical treatment
1 The information provided by the complainant in his complaint has been supplemented by the State
party’s observations, submitted on 16 November 2021, and elements drawn from the documents that
the complainant included in the case file.
2 The amount of this sum was not specified by the complainant.
3 The Federal Office for Migration became the State Secretariat for Migration on 1 January 2015.
4 The evidence submitted by the complainant includes two summonses from the Togolese authorities.
5 The complainant indicates that his fears have been corroborated by several of his fellow victims and
by two non-governmental organizations, one national and the other international.
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and aftercare, it would also be violating his rights under articles 14 and 16 of the Convention.
He adds that, because he is in Switzerland illegally, he is prohibited from obtaining access to
the care to which he is entitled as a victim of torture.
3.2
The complainant claims that he has exhausted all available domestic remedies and
that his complaint has not been submitted for examination by any other procedure of
international investigation or settlement.
State party’s observations on the merits
4.1
The State party submitted its observations on the merits of the complaint in a note
verbale dated 16 November 2021.
4.2
The State party notes that article 3 of the Convention states that no State party may
expel, return (refouler) or extradite a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected to torture. For the
purpose of determining whether there are such grounds, the competent authorities must take
into account all relevant considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations of human rights. The
State party notes that the Committee has reified the provisions of article 3 in its jurisprudence
and issued specific guidelines on the implementation of this article in its general comment
No. 4 (2017), paragraph 38 of which states that a complainant must show that the danger of
being subjected to torture in the event of an expulsion to his or her country of origin is
foreseeable, present, personal and real. Moreover, the grounds for the existence of such a risk
must appear to be substantial, which is the case when the relevant claims are based on credible
facts. The factors that must be taken into account in order to conclude that such a risk exists
include: evidence of a consistent pattern of gross, flagrant or mass violations of human rights
in the State concerned; allegations of torture or ill-treatment in the recent past; the existence
of and access to evidence from independent sources to support these allegations; the
complainant’s engagement in political activities within or outside his or her State of origin;
and any evidence as to the credibility of the complainant and the overall veracity of his or
her allegations, despite certain inconsistencies in the presentation of the facts or lapses of
memory.
4.3
The State party notes that the Committee must take into account all relevant
considerations, in accordance with article 3 (2) of the Convention, including the existence of
a consistent pattern of violations of the complainant’s rights by the State. It must thus be
determined whether the complainant faces a “personal” danger of being subjected to torture
in the country to which he would be returned.6 It follows that the existence of a pattern of
violations of human rights in a country is not sufficient to conclude that a particular person
would be in danger of being subjected to torture on being returned to the country. There must,
therefore, be additional reasons to conclude that the danger of being subjected to torture is
“foreseeable, present, personal and real”.7
4.4
The State party submits that, according to the recent judgments of the Federal
Administrative Court, “in spite of relatively regular violence, Togo is not in a situation of
war, civil war or widespread violence throughout its territory that would allow the
presumption to be made from the outset … that all the country’s nationals are in real danger”.8
The State party notes, however, that human rights organizations report that detainees in Togo
6 K.N. v. Switzerland (CAT/C/20/D/94/1997), para. 10.2; and M.D.T. v. Switzerland,
(CAT/C/48/D/382/2009), para. 7.2.
7 See, inter alia, N.S. v. Switzerland (CAT/C/44/D/356/2008), para. 7.2; and T.Z. v. Switzerland
(CAT/C/62/D/688/2015), para. 8.3. See also Committee against Torture, general comment No. 4
(2017), paras. 11 and 38.
8 Judgment E-2143/2019 of 27 April 2021, preambular para. 7.2; and judgment E-7106/2018 of 4 May
2021, preambular para. 7.2; see also the Federal Administrative Court judgment of 26 March 2015 in
the present case, p. 9.
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are subjected to ill-treatment.9 Similarly, the Committee against Torture10 and the Human
Rights Committee11 have expressed concern about allegations of torture and ill-treatment
committed by law enforcement and security officers against individuals being held in custody
and pretrial detention in Togo. Nonetheless, the State party recalls that a worrying human
rights situation is not sufficient to conclude that an individual would be at risk of torture or
ill-treatment on return to his or her country. Rather, there must be additional reasons to
conclude that the danger of being subjected to torture is foreseeable, present, personal and
real. In the case at hand, the State party argues that the reports mentioned by the complainant,
which deal with the human rights situation in Togo,12 do not demonstrate that he would be
personally in danger of being subjected to torture if he were returned to the country.
Furthermore, these reports do not undermine the Swiss authorities’ conclusion that the
complainant’s allegations lack credibility.
4.5
The State party recalls that the torture or ill-treatment to which a complainant claims
to have been subjected in the past is a factor to be considered when assessing the person’s
risk of being subjected to torture or ill-treatment again in the event of his or her return to his
or her country.13 It states that, in the present case, the allegations of torture during the
complainant’s alleged detention in Togo were limited to mere assertions, which were not
supported by any concrete evidence or reliable and decisive proof, either during the ordinary
asylum proceedings or in the applications for review. The State party therefore submits that
the complainant’s statements did not meet the plausibility requirements set out in article 7 of
the Asylum Act, which is why they were found to lack credibility by the asylum authorities.
The State party also notes that the complainant did not provide the Committee with evidence
to support his allegations of torture and ill-treatment.
4.6
The State party rejects the complainant’s argument that the asylum authorities failed
to investigate his allegations of torture and ignored the evidence he provided. The State party
submits that, in its decision of 24 November 2020, the State Secretariat for Migration
assessed the relevance of the medical reports produced by the Geneva University Hospitals
on 29 August and 28 September 2020 concerning the torture inflicted on the complainant and
that no evidence to support his allegations was found. The State party points out that the
proctological examination, the purpose of which was to confirm that the complainant had
been subjected to anal rape, did not reveal any abnormalities that could corroborate the
complainant’s allegations. It notes that the alleged sexual abuse of the complainant and the
conditions from which he claimed to suffer were taken into consideration by the Federal
Administrative Court in its judgment of 19 August 2015, in which it was established that,
even if the cause of the complainant’s issues was sexual assault, the medical reports clearly
did not determine that such assault had been committed by a police officer or public official
during the complainant’s alleged incarceration, an allegation deemed implausible by both the
State Secretariat and the Court during the ordinary proceedings.
4.7
The State party argues that the ovoid-shaped scar of 10 mm in diameter on the
complainant’s forearm, which was said to be the result of a cigarette burn, is, in itself,
insufficient to prove his allegations of torture. It adds that the medical certificates concerning
the complainant’s psychological condition contained no objective observations that could
confirm the veracity of the events reported. The State party considers that the medical
certificates and the finding of post-traumatic stress disorder do not constitute proof that the
violence alleged by the complainant was perpetrated in the circumstances described. The
State party concludes that the complainant’s allegations of torture are unfounded.
4.8
The State party submits that the complainant’s statements about his past political
activities are limited to mere assertions, which are not supported by any concrete evidence
or reliable and decisive proof. It notes that the Federal Administrative Court ruled that the
9 United States Department of State, “Togo 2020 Human Rights Report: Executive Summary”, p. 3;
and Amnesty International, Amnesty International Report 2020/21: The state of the world’s human
rights, p. 458 (noting that the police continued to use torture).
10 CAT/C/TGO/CO/3, para. 22.
11 CCPR/C/TGO/CO/5, para. 25 (b).
12 See, inter alia, the reports by Amnesty International and the Ligue togolaise des droits de l’homme.
13 Committee against Torture, general comment No. 4 (2017), para. 49 (b)–(d).
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statements and pronouncements of the Alliance nationale pour le changement submitted by
the complainant were not compelling and that, to all appearances, those documents had been
prepared at the complainant’s request and on his instructions. The State party considers that
the complainant cannot claim that his involvement in political activities was of such a
significant and sustained nature as to confer on him a political profile that would put him at
risk of persecution by the Togolese authorities. The State party concludes that the
complainant’s allegations concerning his political activities are unfounded.
4.9
The State party recalls that the statements made by the complainant during the
ordinary asylum proceedings were found to lack credibility by the State Secretariat for
Migration and the Federal Administrative Court, which conducted an exhaustive analysis of
the multiple implausible elements of the complainant’s asylum application. It also points out
that, according to the Court, in their opinions, medical professionals are only able to
hypothesise the causes of any disorders diagnosed, relying on the patient’s own statements
to do so. The State party further recalls that the Court found that the conditions outlined in
the medical certificates submitted by the complainant14 would not prevent his deportation and
that, according to the State Secretariat, the conditions from which the complainant suffered
(hepatitis C, depression and epigastric pain)15 could be treated in Togo; if necessary, the
complainant could request the immigration authorities to provide him with medical assistance,
in the form of packs of medicine, on his return, so that he could continue any treatment
initiated in Switzerland.
4.10
The State party notes that several of the documents submitted during the third review
proceedings do not contain any genuinely new information that was not included in the
documents submitted during the ordinary proceedings and the first two review proceedings.
In the case of other documents from 2020,16 the complainant did not indicate why he might
have been prevented from submitting them earlier. The State party points out that the
complainant’s problems with the Togolese authorities date back, according to his own
account, to 2012 and that summonses from 2015 were submitted for the first time in 2020.
This late submission, according to the State party, casts doubt on the veracity of the
above-mentioned documents. Furthermore, the State party considers that, given that the
complainant had been in Switzerland for eight years, the documents submitted in the context
of the review proceedings are likely to be documents of convenience prepared for the
purposes of the case.17 The State party concludes that the complainant’s allegations are
implausible and that the evidence submitted does not offer any response to the numerous
implausible elements found by the national authorities.
4.11
The State party submits that, in his communication, the complainant alleged a
violation of article 14 of the Convention and claimed that, because he was in Switzerland
illegally, he did not have access to the essential care he needed as a result of the torture to
which he had been subjected. The State party points out, however, that the complainant did
not make this claim in his appeal before the Federal Administrative Court; accordingly, the
complainant has not exhausted domestic remedies with respect to the violation of article 14
of the Convention. The State party adds that the complainant has in no way substantiated the
allegation of a violation of that article and states that he had seen no need to seek treatment
for his psychiatric problems, either on his arrival in Switzerland or in the months that
followed.
4.12
In view of the foregoing, the State party considers that there are no substantial grounds
for concluding that the complainant would be at risk of being subjected to treatment contrary
to the Convention in the event that he was returned to Togo. It therefore requests the
Committee to find that the deportation of the complainant to Togo would not constitute a
violation of its international obligations under articles 3, 14 and 16 of the Convention.
14 The complainant submitted medical certificates dated 28 April, 26 May, 29 May and 1 July 2015, in
addition to a record of an admission interview on 8 July 2015, as annexes to his application.
15 These conditions are confirmed in medical certificates dated 7 and 13 December 2015.
16 Statement of 25 May 2020, “protection claim” of 27 May 2020 and sworn statement by the
complainant.
17 See, mutatis mutandis, the Federal Administrative Court judgment of 26 March 2015, p. 7.
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Complainant’s comments on the State party’s observations
5.1
On 19 January 2022, the complainant submitted his comments on the State party’s
observations. He points out that the State party disregards the adverse effects of his
post-traumatic stress disorder on the accuracy of his account and that it refuses to investigate
the acts of torture to which he was subjected.
5.2
The complainant submits that victims of torture often suffer from post-traumatic stress,
which can compromise the consistency of their account throughout the asylum proceedings.18
He also indicates that the Committee has already recognized that States parties should not
expect complete accuracy from victims of torture, whose allegations may contain
contradictions and factual inconsistencies.19 The complainant notes that the lack of precision
in the statements of torture victims does not diminish their credibility.20 In the case at hand,
the complainant asserts that, while the State party does not dispute that he suffers from
post-traumatic stress disorder, which is confirmed by the medical report of 28 September
2020, it confines itself to challenging the link between this disorder and the acts of torture to
which he was subjected owing to the alleged inconsistencies in his statements. The
complainant states that these inconsistencies concern details relating to his arrest, such as the
contents of his wallet at that time, the number of individuals who escaped, the military rank
of his torturer and the motives of those who helped him escape.
5.3
The complainant further submits that the variations in his account are the result of the
circumstances of the proceedings. He recalls that more than two years separate his two
interviews, which were conducted on 17 July 2012 and 26 August 2014 in the Ewe language.
He considers that, in view of the length of time between the interviews and the translation
into a foreign language, minor discrepancies in the answers to two or three questions are
unlikely to affect the main thrust of his account, which remains credible. He points out that
his memory has been impaired by the acts of torture to which he was subjected and recalls
that the State party has already been criticized for demanding a degree of precision that torture
victims cannot provide owing to the effect that post-traumatic stress disorder has on their
memories.21
5.4
The complainant claims that the State party refuses to investigate the acts of torture to
which he was subjected. He recalls that, while, in application of article 3 of the Convention,
it is incumbent on him to present an arguable case, the burden of proof is reversed when
complainants are in a situation where they cannot elaborate on their case, and the State party
concerned must investigate the allegations and verify the information on which the complaint
is based. 22 In the present case, the complainant considers that the Swiss immigration
authorities had a duty to investigate his alleged torture by cigarette burning, given that experts
took note of the burn, for which the complainant blames his torturers, and the resulting
post-traumatic stress disorder in the medical report. The complainant notes that, instead of
fulfilling their duty in this regard, the Swiss immigration authorities refused to consider the
documents he submitted, for relatively arbitrary reasons, without examining them carefully.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
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.
18 See Committee against Torture, general comment No. 4 (2017).
19 Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.3.
20 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol), para. 252.
21 The complainant gave no details in this regard.
22 Committee against Torture, general comment No. 4 (2017), para. 38.
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6.2
In accordance with article 22 (5) (b) of the Convention, the Committee may not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, as the
complainant’s appeals were rejected, the rejection of his application for asylum has become
final and that the State party has not contested the admissibility of the complaint. The
Committee therefore finds that it is not precluded by article 22 (5) (b) of the Convention from
considering the communication.
6.3
As the Committee finds no further obstacles to admissibility, it declares the complaint
admissible and proceeds with its consideration of the merits.
Consideration of the merits
7.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the present communication in the light of all the information made available to it by the
parties concerned.
7.2
In the present case, the issue before the Committee is whether the return of the
complainant to Togo would constitute a violation of the State party’s obligation under
article 3 of the Convention not to expel or to return (refouler) a person to another State where
there are substantial grounds for believing that he or she would be in danger of being
subjected to torture or other cruel, inhuman or degrading treatment or punishment. The
Committee must also determine whether the complainant’s allegations under articles 14 and
16 of the Convention are well founded.
7.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainant would be personally in danger of being subjected to torture if he were
returned to Togo. In assessing that risk, it must, pursuant to article 3 (2) of the Convention,
take into account all relevant considerations, including the existence of a consistent pattern
of gross, flagrant or mass violations of human rights.23 However, the Committee recalls that
the aim of this determination is to establish whether the individual concerned would be
personally at a foreseeable and real risk of being subjected to torture in the country to which
he or she would be returned. It follows that the existence of a pattern of gross, flagrant or
mass violations of human rights in a country does not as such constitute sufficient reason for
determining that a particular person would be in danger of being subjected to torture on return
to that country. Additional grounds must be adduced to show that the individual concerned
would be personally at risk. Conversely, the absence of a consistent pattern of flagrant
violations of human rights does not mean that a person might not be subjected to torture in
his or her specific circumstances.24
7.4
The Committee recalls its general comment No. 4 (2017), which states, first, that the
non-refoulement obligation exists whenever there are “substantial grounds” for believing that
the person concerned would be in danger of being subjected to torture in the State to which
he or she is facing deportation, either as an individual or as a member of a group which may
be at risk of being tortured in the State of destination and, second, that the Committee’s
practice has been to determine that “substantial grounds” exist whenever the risk is
“foreseeable, personal, present and real”.25 It also recalls that the burden of proof is borne by
the complainant, who must present an arguable case – that is, submit substantiated arguments
showing that the danger of being subjected to torture is foreseeable, personal, present and
real. However, when the complainant is in a situation where he or she cannot elaborate on
his or her case, the burden of proof is reversed and the State party concerned must investigate
the allegations and verify the information on which the communication is based. 26 The
Committee gives considerable weight to findings of fact made by organs of the State party
concerned; however, it is not bound by such findings, as it can make a free assessment of the
23 Ibid., para. 43.
24 Kalinichenko v. Morocco (CAT/C/47/D/428/2010), para. 15.3.
25 Committee against Torture, general comment No. 4 (2017), para. 11.
26 Ibid., para. 38.
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information available to it in accordance with article 22 (4) of the Convention, taking into
account all the circumstances relevant to each case.27
7.5
The State party takes note of the complainant’s argument that his deportation to Togo
would be in violation of article 3 of the Convention. It also notes the State party’s argument
that, although human rights organizations, the Human Rights Committee and the Committee
against Torture have reported cases of ill-treatment of detainees in Togo, a worrying human
rights situation is not, in itself, sufficient to demonstrate that the complainant would be
personally at risk of being subjected to torture if he were deported.
7.6
The Committee notes that the torture or ill-treatment to which a complainant claims
to have been subjected in the past is a factor to be considered when assessing the risk that he
or she will again be subjected to torture or ill-treatment upon returning to his or her country.28
In the present case, the Committee notes the complainant’s statement that, following his
arrest in 2012 by Togolese law enforcement officers, he was taken to an unknown destination,
where he was beaten, tortured with cigarette burns and then raped. The Committee notes the
State party’s argument that the allegations of torture made by the complainant are mere
assertions that are not supported by any concrete evidence or reliable proof, submitted either
to the asylum authorities or the Committee. It notes that, according to the State party, the
asylum authorities duly examined the complainant’s allegations of torture, including by
analysing the medical certificates provided, and that there is no evidence to support the
allegations of rape or burning with cigarettes made by the complainant. The Committee also
notes the State party’s argument that the Federal Administrative Court took into account the
complainant’s allegation of sexual abuse and decided that, even if the complainant’s issues
were caused by sexual assault, the medical reports did not determine that such assault was
committed by a public official during the complainant’s detention, an allegation that the
immigration authorities considered to be implausible. In the present case, the Committee
considers that, in view of the information in the case file, the complainant has not
demonstrated that the immigration authorities’ assessment of the acts of torture to which he
was allegedly subjected was arbitrary.
7.7
The Committee notes the complainant’s argument that, as a leader of the Alliance
nationale pour le changement in Togo, he took part in protests against the Government and
that his participation in a demonstration held in Lomé on 12 June 2012 led to him being
arrested, detained and then subjected to ill-treatment by law enforcement officers. The
Committee also notes the State party’s argument that the complainant was unable to prove to
the Swiss immigration authorities that his involvement in political activities was of such a
significant and sustained nature as to confer on him a political profile that would put him at
risk of persecution by the Togolese authorities.
7.8
The Committee notes that the State party has cast doubt on the credibility of the
complainant’s allegations. The State party points out that, according to the Federal
Administrative Court, medical opinions are formed on the basis of the hypotheses of medical
professionals, who rely on the patient’s own statements, and that the conditions alleged by
the complainant would not prevent his return to his country of origin. The Committee further
notes that, according to the State party, the State Secretariat for Migration considered that the
conditions from which the complainant suffers (hepatitis C, depression and epigastric pain)
could be treated in Togo and that he would be able to receive medical return assistance. The
Committee points out that, also according to the State party, several documents submitted
during the third review proceedings do not contain any new information that was not included
in the documents submitted during the previous proceedings and that the complainant has not
specified the reasons for which these documents were submitted more than eight years after
his entry into Switzerland.
7.9
The Committee notes that, in his comments of 19 January 2022 on the State party’s
observations, the complainant stated that his memory had been impaired as a result of the
acts of torture to which he had been subjected in his country of origin and that the
inconsistencies and inaccuracies in his allegations were due to the trauma sustained from the
27 Ibid., para. 50.
28 Ibid., para. 49 (b)–(d).
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many acts of torture committed against him and to the circumstances of the proceedings, in
particular the long period – two years – between his two interviews, conducted in the Ewe
language. The Committee also notes that, according to the complainant, the State party did
not dispute that he was suffering from post-traumatic stress disorder but confined itself to
challenging the medical report submitted in that regard owing to the variations found in his
account, which generally remains consistent.
7.10
The Committee considers that the complainant had the opportunity to point out any
irregularities identified during the proceedings, both before the State Secretariat for
Migration and the Federal Administrative Court. He was not prevented from lodging
applications for review and failed to present to the immigration authorities factual
information demonstrating that he would personally be at risk of torture if he were deported
to Togo and to prove that the conduct of his asylum proceedings had been flawed or amounted
to a denial of justice, despite the fact that the interviews were conducted in Ewe, a language
of which he has a perfect command. With regard to the potential impact of his conditions on
the accuracy of his statements, the Committee considers that it is incumbent on the
complainant to prove that those conditions would impair his memory.
7.11
The Committee notes that, according to the complainant, contrary to its obligation
under article 3 of the Convention, the State party refuses to investigate his allegations of
torture by cigarette burning and post-traumatic stress disorder and has disregarded the
documents supporting the facts submitted without careful study. The Committee notes,
however, that the information included in the case file by the complainant himself
demonstrates that all the medical reports submitted were taken into account and analysed by
the asylum authorities, who cast doubt on their relevance and credibility.
7.12
With regard to the violation of article 14 of the Convention, the Committee notes the
complainant’s argument that his illegal presence in Switzerland is depriving him of the right
to have access to the care to which he is entitled as a victim of torture and that, should the
State party refuse to provide him with medical treatment and aftercare in Switzerland, it
would be violating his rights under articles 14 and 16 of the Convention. The Committee
notes the State party’s argument that the complainant did not make this claim before the
Swiss national authorities and has not seen the need to seek treatment for his psychological
problems during his stay in Switzerland. Beyond the complainant’s general assertions, the
Committee observes that his allegations are not corroborated by any evidence that could
engage the State party’s responsibility in relation to the claims of a violation of articles 14
and 16 of the Convention.
7.13
Lastly, the Committee notes that the complainant had ample opportunity to provide
supporting evidence and more details about his claims, at the national level, before the State
Secretariat for Migration and the Federal Administrative Court, as well as during the three
review proceedings, but that the evidence provided did not lead the national authorities to
conclude that he would be at risk of being subjected to torture or cruel, inhuman or degrading
treatment upon his return to Togo.
7.14. While the Committee is concerned at the numerous reports of human rights violations
in Togo, including the use of torture and ill-treatment, it recalls that, for the purposes of
article 3 of the Convention, complainants must demonstrate that they face a foreseeable, real
and personal risk of torture in the country to which they are returned. In the light of the
foregoing, the Committee believes that such a risk has not been established. It considers that
the documents and information submitted by the complainant do not dispel the doubts
expressed by the State party’s authorities as to their reliability and are not sufficient to
establish that he would run a foreseeable, present, personal and real risk of being subjected
to torture if he were returned to Togo.29
7.15
The Committee refers to paragraph 38 of its general comment No. 4 (2017), according
to which the burden of proof is upon the complainant, who has to present an arguable case.30
In the light of the foregoing, and in the circumstances of the present case, the Committee
29 R.K. and L.B.M. v. Switzerland (CAT/C/75/D/962/2019), para. 6.7.
30 See T.M. v. Sweden (CAT/C/68/D/860/2018), para. 12.13; and S.B. v. Cameroon
(CAT/C/75/D/1034/2020), para. 8.6.
CAT/C/80/D/1064/2021
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considers that the complainant has not discharged the burden of proof, having failed to
provide sufficient information to establish that the authorities of the State party have treated
him in a manner that might be contrary to articles 3, 14 and 16 of the Convention.
8.
In the light of the foregoing, the Committee considers that the information submitted
by the complainant is insufficient to substantiate his claim that the State party has violated
articles 14 and 16 of the Convention or that he would face a foreseeable, present, personal
and real risk of torture if he were deported to Togo, in violation of article 3 of the Convention.
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the
deportation of the complainant to Togo, if it takes place, would not constitute a violation by
the State party of article 3 of the Convention.