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.24-14075 (E) 211024 211024
Committee against Torture
Decision adopted by the Committee under article 22
of the Convention, concerning communication
No. 1086/2021*, **
Communication submitted by:
S.P. (represented by counsel from the association
Caritas)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
2 July 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 9 July 2021 (not issued in
document form)
Date of adoption of decision:
12 July 2024
Subject matter:
Deportation to Sri Lanka
Procedural issue:
Level of substantiation of claims
Substantive issue:
Risk of torture or other cruel, inhuman or
degrading treatment or punishment, if deported
to country of origin (non-refoulement)
Articles of the Convention:
3, 14 and 16
1.1
The complainant is S.P., a national of Sri Lanka born in 1990. He has filed several
applications for asylum in Switzerland, but they have been denied. He is facing removal to
Sri Lanka and claims that his removal would constitute a violation by the State party of
articles 3, 14 and 16 of the Convention. The State party has made the declaration pursuant to
article 22 (1) of the Convention, effective from 2 December 1986. The complainant is
represented by counsel.
1.2
On 9 July 2021, 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 to Sri Lanka while the complaint was being considered.
Factual background
2.1
The complainant is of Tamil ethnicity. He left Sri Lanka on 22 September 2013 and
travelled to Switzerland, where he applied for asylum on 17 November 2013. He was
* 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, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.
United Nations
CAT/C/80/D/1086/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
20 August 2024
English
Original: French
CAT/C/80/D/1086/2021
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interviewed by the Federal Office for Migration on 22 November 2013 and then by the State
Secretariat for Migration on 16 February 2015.1
2.2
During the interviews, the complainant stated that, in 2009, he had become a member
of the Tamil National Alliance and had canvassed for it in his village. In 2013, disappointed
that the party had not included him on its list of candidates, he left the Tamil National
Alliance and joined the Democratic Unity Alliance, which placed him on its list for the
upcoming elections. In preparation for those elections, the Democratic Unity Alliance printed
leaflets containing false information with a view to deceiving voters and obtaining their votes,
to the detriment, in particular, of the Tamil National Alliance. The complainant and a friend
who was also a member of the party did not approve of those tactics and said that they wanted
to leave the party. Then, between 14 and 16 September 2013, the complainant was abducted
and detained by unknown persons. Before he was released, he was told that if he stopped
working for the Democratic Unity Alliance or reported the party’s unlawful conduct, he
would be killed. On the very day of his release, the complainant and his friend took to the
streets in a vehicle equipped with a loudspeaker and spoke out about the Democratic Unity
Alliance’s actions. Later that day, unknown persons looking for the complainant showed up
at his house while he was not there, prompting him to flee to Colombo and then leave for
Switzerland. After his departure, the complainant learned from the son of a pastor that his
brother had been interrogated and ill-treated because of their father’s earlier involvement
with the Liberation Tigers of Tamil Eelam. The complainant also stated that he had taken
part in a pro-Tamil demonstration in Geneva.
2.3
On 20 February 2015, the State Secretariat for Migration denied his asylum
application, finding what he asserted to be implausible. The State Secretariat noted
contradictions in his account; for example, he had said at his first interview that his
involvement in politics had begun in 2013, with the Democratic Unity Alliance, and that he
had never acted on behalf of any other party, but then he indicated at his second interview
that he had entered politics in 2009, on behalf of the Tamil National Alliance. Furthermore,
at the first interview, the complainant had made no reference or allusion to his actions after
his abduction, namely that he had ridden around the streets of the village with a loudspeaker,
speaking out against the Democratic Unity Alliance and encouraging people to vote for the
Tamil National Alliance.
2.4
The State Secretariat for Migration also noted that the evidence submitted by the
complainant lacked clear relevance. It demonstrated, at most, his political activism on behalf
of legal parties but did not support the key element of his account, namely the alleged threats
from the Democratic Unity Alliance and the danger that he would face in the event of his
return because of his mere withdrawal from the election. The complainant had never engaged
in political activity that was unlawful or in fierce opposition to the current Government of
Sri Lanka. The State Secretariat further noted that the complainant had never had any specific
links with the Liberation Tigers of Tamil Eelam and that he had never had any serious
problems with the local authorities. Moreover, it found that he had never been arrested,
detained or brought before a court because he had simply engaged in political activities.
Lastly, the complainant had failed to provide a credible basis for his claim that the Sri Lankan
authorities genuinely wished to punish him for his mere participation in a pro-Tamil
demonstration in Switzerland.
2.5
The complainant filed an appeal, arguing that his claims were plausible and relevant.
He stated, for example, that his friend from the Democratic Unity Alliance, also a candidate
in the September 2013 election, had disappeared without a trace. On 26 June 2015, the
Federal Administrative Court dismissed his appeal.
2.6
On 13 August 2015, the complainant filed another asylum application with the State
Secretariat for Migration, citing elements post-dating the 26 June 2015 judgment that
constituted clear evidence of the electoral misconduct of the Democratic Unity Alliance, his
ties to his friend, who was probably deceased,2 and the risk that he too would be subjected to
the same kind of persecution. For reasons of jurisdiction, the State Secretariat transferred the
1 The Federal Office for Migration became the State Secretariat for Migration on 1 January 2015.
2 A case was said to have been opened after a complaint was filed with the police.
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application to the Federal Administrative Court, which considered it to be a request for
review and dismissed it on 4 March 2016. The Court noted that the evidence adduced, in
particular that relating to his friend’s situation, could have been submitted under the ordinary
asylum procedure. All the evidence had existed for at least close to two years when the Court
had issued its 26 June 2015 ruling on the complainant’s appeal, which meant that the
complainant could have obtained it and put it forward much earlier. Moreover, the Court
found, in particular, that the evidence in no way rendered plausible the alleged disappearance
of the complainant’s friend or a fortiori any potential connection between that disappearance,
assuming that it had occurred, and the grounds for asylum asserted by the complainant.
2.7
On 27 October 2016, the complainant filed a new asylum application, claiming that
the police were looking for him in connection with a criminal case that had been opened
against him at the instigation of the Democratic Unity Alliance, on the basis of false
accusations. He provided the originals of an arrest warrant and a detention certificate, dated
7 and 20 June 2016, said that he had a tattoo of a tiger symbolizing the Liberation Tigers of
Tamil Eelam and cited several reports on the human rights situation in Sri Lanka.
2.8
On 6 December 2016, the State Secretariat for Migration denied the complainant’s
new asylum application, finding that the new evidence was fake. Regarding the arrest warrant,
the State Secretariat noted that the originals of such documents are not handed over to the
persons sought and, moreover, information typically found in such documents was missing.
With respect to the detention certificate, the State Secretariat noted that the purpose of such
certificates is to confirm that a detention has taken place; in the case at hand, however, the
complainant had not been in detention in 2016, and there was therefore nothing to certify. In
the view of the State Secretariat, even if it was true that the complainant had been politically
active, it was impossible to understand what interest the Sri Lankan authorities could have in
taking any action whatsoever against him in the present. On 14 December 2016, the
complainant appealed, and on 13 January 2017, he filed a new asylum application with the
State Secretariat, in which he stated, among other things, that he was at risk also because of
the activities carried out for the Liberation Tigers of Tamil Eelam by his father – who had
been killed in fighting in 1998 – and a cousin. He also indicated that he was undergoing
psychiatric treatment.
2.9
On 17 June 2019, the Federal Administrative Court, considering, in particular, the
written submission of 13 January 2017 and the annexes thereto to be a supplement to the
appeal, dismissed the appeal. It ruled that the State Secretariat for Migration had correctly
concluded that the two official Sri Lankan documents provided as evidence on 27 October
2016 were fake, and that the criminal proceedings allegedly instigated by the Democratic
Unity Alliance had been invented for the purposes of the case. The late allegations regarding
the risks he faced because of the activities carried out by his father and cousin for the
Liberation Tigers of Tamil Eelam were highly doubtful. In any event, the Sri Lankan
authorities had taken no action against him because of that prior to his departure, and there
was no reason to believe that the situation would be different upon his return. Furthermore,
the alleged activities of his father, who the complainant had indicated had died in 1998, were
far too remote in time to justify such a fear. The Court then noted that, given its appearance,
the tattoo on the complainant’s arm could not be interpreted as a symbol of the Liberation
Tigers of Tamil Eelam that would cause the authorities to suspect, on his return to Sri Lanka,
that he supported the movement. Lastly, the Court held that the complainant’s health was not
an obstacle to his removal because he had provided no medical report to support his claims
regarding his mental disorders and psychiatric treatment.
2.10
On 21 March 2020, the complainant filed a new asylum application. In it, he set out
his real grounds for seeking asylum3 and stated that he had been very afraid to reveal the
reasons for his flight and request for protection, because he risked being severely punished
by supporters of the Liberation Tigers of Tamil Eelam if anyone learned that he had betrayed
the movement and stolen money from it to pay for his escape. The complainant explained
that, while a member of the Liberation Tigers of Tamil Eelam, he had been tasked with
3 During his interviews with the State Secretariat for Migration, the complainant was reportedly unable
to disclose his reasons for seeking asylum because the interpreter was a member of the Tamil
community whom he could not bring himself to trust.
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holding money for it. His father – who went missing when the complainant was 5 years old
– had been an important official in the movement and had had a team of nine people under
him. Their job had been to pick up and transport weapons and money. The complainant had
initially helped at home with preparations for operations and with the storage of weapons. In
2004, he began transporting money, which was received by managers of major commercial
outlets in Colombo, who then sent it on in small amounts to outlets in other districts. The
complainant had to pick up these small amounts, store them and pass them on to a leader of
the Liberation Tigers of Tamil Eelam.
2.11
The complainant asserted that, in 2001, his cousin, who often worked with him, was
arrested by the police while she was transporting money for the Liberation Tigers of Tamil
Eelam. She was detained by the police4 and tortured and then released after paying a bribe.
On 11 June 2008, the same cousin was abducted by the Sri Lankan authorities while she was
transporting weapons and ammunition to various battlefields indicated by the Liberation
Tigers of Tamil Eelam. She was never seen again.
2.12
The complainant stated that, in addition to carrying out activities for the Liberation
Tigers of Tamil Eelam, he had been an active member of the Tamil National Alliance from
2009 to 2013, but in August 2013, members of the Democratic Unity Alliance abducted him
to have him fund their election campaign. This party knew what he did for the Liberation
Tigers of Tamil Eelam and forced him to pay a large sum of money.
2.13
Lastly, the complainant stated that, on 5 September 2013, officers of the Sri Lankan
Criminal Investigation Department had gone to his house to carry out a search. He notes that
they looked everywhere but found nothing. They handcuffed him and took him in a white
van to Joseph Camp in Vavuniya, where he was subjected to uninterrupted physical,
psychological and sexual torture for five days. They twisted his fingers and broke them,
stepped on his hands in boots, twisted his foot and broke it, burned his arm with cigarettes,
beat him and threw him against a wall, which caused him to bleed heavily from the head and
vomit. At night, the complainant was raped repeatedly. He was forced to drink alcohol and
masturbate and was used as a sex slave. Various wooden objects were inserted into his anus,
and he was beaten on his testicles.5 He lost consciousness at least five times. He was later
released on the condition that he become an informer for the Criminal Investigation
Department and that he reveal the location of the money and the identities of Liberation
Tigers of Tamil Eelam members. He was handed over to his mother in very bad shape,
following the payment of a large sum of money. On 14 September 2013, the complainant,
who was angry, took part in a demonstration against the actions of the authorities at the urging
of a friend. The next day, officers of the Criminal Investigation Department went to his home,
where they arrested his friend. His friend was tortured and is currently in England, where he
has refugee status.
2.14
On 16 April 2020, the State Secretariat for Migration denied the complainant’s new
asylum application. It found that the new grounds for asylum were not credible given the
complainant’s previous conduct, as the explanations given as to why he had allegedly been
unable to tell the truth up to that point were unconvincing. Furthermore, the complainant had
in no way explained what had allowed him to overcome his fears. Moreover, the new asylum
application was based entirely on mere allegations by the complainant, which were supported
by no new evidence and could not be verified. Since the Asylum Act (No. 142.31 of 26 June
1998) provides for what is basically a written procedure, the State Secretariat did not consider
it necessary to summon the complainant to an interview.
2.15
On 18 May 2020, the complainant filed an appeal claiming that his right to be heard
had been violated, since the State Secretariat for Migration should have held a supplementary
interview with him. Furthermore, the State Secretariat had breached its duty to investigate
by, for example, failing to allow time for the submission of a medical report even though his
application revealed that he had psychological problems as a result of the events that had
4 On 27 April 2001, the International Committee of the Red Cross confirmed that it had visited her on
30 March 2001.
5 The complainant mentions the sexual abuse only in his communication to the Committee. He did not
mention it in either his asylum application of 21 March 2020 or the annexes thereto containing his
own statements.
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forced him to flee his home country, the torture that he had been subjected to there and his
betrayal of the Liberation Tigers of Tamil Eelam. The complainant provided a medical report
dated 12 May 2020 that stated that he was experiencing a moderate to severe depressive
episode, post-traumatic stress disorder and mental and behavioural disorders related to
alcohol and cannabis use. The report noted multiple cigarette burns, no signs of having been
beaten or cut on other parts of his body and pain in his left knee since his detention in
September 2013.
2.16
On 9 October 2020, the Federal Administrative Court dismissed the complainant’s
appeal, explaining that under the Asylum Act, asylum applications submitted within five
years of the entry into force of an asylum or removal decision were processed under a special
procedure conducted solely in writing. In the case at hand, the State Secretariat for Migration
had no reason to investigate the matter further, as the written arguments revealed how little
credence could be given to the alleged grounds for asylum set out, which were clearly
implausible.
2.17
With respect to the new grounds for asylum, the Federal Administrative Court found
that they were not free of contradiction and contained significant implausible elements. In
particular, it was hardly credible that, years after his father’s alleged death in 1998, the
Liberation Tigers of Tamil Eelam would have started entrusting the complainant with a task
as important as transporting large sums of money in 2004, when he was only 14 years old,
and then with transporting weapons just one year later. The Court then noted various
contradictions between what was stated in the application of 21 March 2020 and what the
complainant had told the therapist, as reflected in the medical report dated 12 May 2020. In
addition, the abduction by the Democratic Unity Alliance had suddenly moved from 14
September 2013 to August 2013. Although detained and severely tortured for five days, the
complainant apparently still took part in a demonstration three days after he was released.
2.18
Given the complainant’s statement that he feared harsh reprisals from the Liberation
Tigers of Tamil Eelam for having stolen a large sum of money from them and that, if his
whereabouts were discovered, his life could even be in danger, the Federal Administrative
Court was surprised that, instead of covering his tracks, he had left his country using the most
monitored route possible – that is, via the Colombo airport – and his own passport. After
arriving in Switzerland, the complainant filed his asylum application under his real name and
then lived in the country under his own identity, residing in the same canton for an
uninterrupted period of almost six and a half years, until filing his application of 21 March
2020. Furthermore, he lived in three refugee centres, spending two years and almost eight
months in one of them. Under those circumstances, given the number of Sri Lankan
asylum-seekers of Tamil origin and the size of that community in Switzerland, which
includes many members and supporters of the Liberation Tigers of Tamil Eelam, the
complainant would certainly already have been identified well before 21 March 2020 if there
was an active search for him following such a serious act of betrayal, even assuming that he
had actually made the efforts he claimed to avoid all unnecessary contact.
2.19
The Federal Administrative Court pointed out that, when he arrived in Switzerland,
the complainant’s duty to cooperate and the potential consequences of making false
statements had been clearly explained to him, both in a memorandum and orally at the
beginning of each of his two interviews. He had also been informed that the interpreters
working for the State Secretariat for Migration were neutral and bound by a duty of
confidentiality. Furthermore, different interpreters had been present at the two interviews
held by the State Secretariat, not one as suggested by the complainant in his application. Thus,
all the conditions had already been in place even under the ordinary procedure for the
complainant to be able to share, without fear, his alleged real reasons for seeking asylum.
2.20
With regard to the medical report of 12 May 2020, the Federal Administrative Court
found that it too lacked probative value. The therapist had essentially based his opinion on
what the complainant himself had said, including claims that were clearly implausible and
differed in part from those put forward to the State Secretariat for Migration in the application
of 21 March 2020. Firstly, if, as he claimed, the complainant had been tortured in September
2013 and, as a result, had serious trauma-related mental disorders, he would in all likelihood
have started psychiatric treatment shortly after arriving in Switzerland and could therefore
have provided one or two medical documents showing that he was receiving such treatment
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and indicating what trauma-related conditions had been diagnosed. Secondly, the fact that
the complainant bears cigarette burn marks on his forearms is not sufficient to establish the
acts of torture that he had allegedly been subjected to by the Sri Lankan Criminal
Investigation Department. According to the medical report, the complainant bears no signs
of having been beaten or cut on other parts of his body, which seems hard to believe given
the description of the repeated acts of violence that he had to endure for five days. As for the
pain in his left knee that the complainant says he has had since that time, no injury was found
in that area, even after a more thorough examination was performed using magnetic
resonance imaging, and, moreover, such pain is quite common and could have a completely
different cause.
2.21
The Federal Administrative Court concluded that the complainant had not been
subjected to the acts of torture alleged to have been committed in September 2013. Therefore,
even if it was assumed that the complainant had the cigarette burn marks at the time he left
Sri Lanka, he must not have gotten them how he claimed. The same could be said of the
trauma-related disorders noted in the medical report, assuming there had actually been a
definitive diagnosis of those disorders by the treating therapist. The health problems
described in the medical report were not so severe that the complainant’s removal would pose
an imminent, substantial and concrete risk to his life or psychological integrity. There was
no indication that the necessary care would be unavailable in Sri Lanka, a country with
sufficient healthcare facilities and resources.
2.22
On 18 February 2021, the complainant underwent a forensic examination performed
in accordance with the Manual on the Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) and
mentioned the sexual abuse that he had experienced. On 1 June 2021, the doctor concluded
that the physical marks on the complainant’s body were consistent with the claims of torture
and ill-treatment.6 Another medical report, dated 31 May 2021, revealed post-traumatic stress
disorder and severe depression with enduring personality change after catastrophic
experience.
Complaint
3.1
The complainant submits that, by removing him to Sri Lanka, the State party would
violate his rights under articles 3, 14 and 16 of the Convention, since, as a victim of torture
wanted by the Sri Lankan authorities, who stole money from the Liberation Tigers of Tamil
Eelam to pay for his escape, he would be at risk of being tortured and subjected to cruel,
inhuman or degrading treatment there. In addition, he would not have access to rehabilitation
services.
3.2
The complainant maintains that he would have no access to specialized treatment in
Sri Lanka, where, moreover, he would not dare to seek such treatment because he would risk
attracting the attention of the authorities. However, it is undisputed that, as a victim of torture,
he needs regular medical care, without which his health would deteriorate rapidly and his life
would be in danger. The complainant is particularly vulnerable and requires specific,
advanced medical and psychological care. There is no rehabilitation programme for victims
of torture and ill-treatment in Sri Lanka.
3.3
The complainant asserts that his claims regarding the reasons for his flight are
plausible. He considers it to be excusable for victims of severe trauma, who are reluctant to
speak about what they have been through, to raise claims late. Lastly, he notes that, as a
victim of sexual assault, he may be stigmatized in Sri Lanka, will be unable to obtain
treatment and risks facing criminal charges for homosexuality.
State party’s observations on admissibility and the merits
4.1
On 7 April 2022, the State party submitted its observations. It first expresses its view
that the complainant has not exhausted the available domestic remedies, since he did not raise
his claim that he had been sexually abused while allegedly in detention either in his request
6 The report refers to previous medical reports prepared on 10 July 2019, 28 August 2019,
13 September 2019, 12 May 2020, 18 May 2020 and 20 January 2021.
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for review of 21 March 2020 or at any other point in the domestic proceedings. His claim
that he had been subjected to very severe sexual abuse and additional acts of ill-treatment
and humiliation during his alleged detention from 5 to 10 September 2013 constitutes a
significant new element predating the domestic decisions and judgments rendered. The same
is true of the medical reports of 10 July 2019, 13 September 2019 and 18 May 2020, referred
to in the medical report prepared in accordance with the Istanbul Protocol, which were never
brought to the attention of the domestic authorities. The foregoing can therefore serve as the
basis for a request for review by the Federal Administrative Court. The Court’s case law has
established that a failure to raise a claim of rape until a case has reached the stage of special
appellate proceedings can be explained by feelings of guilt and shame, sociocultural obstacles
or defence mechanisms developed by the victim.
4.2
The State party then notes that the complainant refers to evidence postdating the last
domestic judgment, namely a medical report dated 1 June 2021, which is supposed to
demonstrate that the detention and the severe ill-treatment, including severe sexual abuse,
during the detention had occurred, and a medical report of 20 January 2021 referred to in the
medical report prepared under the Istanbul Protocol. Neither the Federal Administrative
Court nor the State Secretariat for Migration was able to rule on the relevance of these later
items, although they could constitute the basis for a request for review under the Asylum Act.
4.3
With respect to the merits, the State party acknowledges that the human rights
situation in Sri Lanka is worrying in many respects7 but points out that this situation and the
risk of being subjected to torture in the event of deportation were already thoroughly assessed
by the Federal Administrative Court in a landmark ruling.8 According to this ruling, not all
returnees with a real or supposed, present or past link to the Liberation Tigers of Tamil Eelam
necessarily risk persecution. Only persons accused of rekindling ethnic conflict face such a
risk. The same applies to Sri Lankan nationals who have engaged in political activities in
exile.
4.4
In the case at hand, the complainant has never been arrested, imprisoned or involved
in court proceedings, nor have the Sri Lankan authorities ever truly taken steps to prosecute
or summon him. He has in fact never had the slightest problem with the authorities in his
country and has never engaged in conduct likely to attract negative attention from them. The
complainant left the country lawfully, using his own passport. The tattoo of a tiger on his arm
bears no resemblance to the symbol of the Liberation Tigers of Tamil Eelam. His political
activities in Switzerland have been low-profile and have had no consequences. In the State
party’s view, the complainant does not have a profile that would suggest that he would attract
the attention of his country’s security services in the event of his return. In addition, both his
father and cousin, who had allegedly been actively involved with the Liberation Tigers of
Tamil Eelam, have been deceased for a number of years.
4.5
Furthermore, the State party finds nothing in the communication to indicate that the
Sri Lankan Government would consider the complainant a threat to that State. Although it is
true that the complainant is of Tamil ethnicity and has lived abroad for an extended period,
he has failed to make a plausible case that he had attracted the attention of the Sri Lankan
authorities. It can therefore be concluded that he would not be at risk of treatment prohibited
by article 3 of the Convention if he were to be returned to Sri Lanka.
4.6
Regarding the medical report dated 1 June 2021, the State party points out that the
doctor met the complainant only once, on 18 February 2021, and that his overall assessment
was based largely on three elements: the complainant’s allegations, his own clinical tests and
observations, particularly with respect to the scars found, and medical records from various
other specialists.
4.7
The State party notes that the complainant does not explain what had caused him to
suddenly be able to spontaneously and apparently almost effortlessly share his weighty and
deeply buried secret regarding the acts of sexual violence committed against him and provide
a full and detailed account to a doctor with whom he was meeting for the first time on
18 February 2021, after previously having seemingly been unable to open up even to a series
7 See CAT/C/LKA/CO/5.
8 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
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of therapists with whom he had had ample time to build a relationship of trust. Moreover, the
doctor with whom the complainant met on 18 February 2021 did not speak his language,
which necessitated the involvement of a third person, namely an interpreter, which would
have represented a significant source of additional stress. In the State party’s view, the
probative value of a medical report can be reduced or negated when there are specific factors
that call its reliability into doubt, as in the case at hand. Therefore, the claims regarding the
acts of torture and, in particular, sexual abuse committed during the complainant’s alleged
detention in September 2012 cannot be considered to have been substantiated.
4.8
The State party points out that the complainant, through counsel, submitted three
asylum applications and one request for review to the Swiss authorities. In them, he presented
several widely varying accounts of the reasons that had caused him to leave Sri Lanka and
that allegedly made him fear persecution if he returned. In addition, the complainant made
use of fake documents, failed to comply with his duty to cooperate and employed delaying
tactics. He also went into hiding to prevent his removal to Sri Lanka. In the light of this
pattern of behaviour over the extended period of time that he has spent in Switzerland,
without complying with the asylum decisions of its courts, serious questions must be raised
about his personal credibility. In this regard, the State party refers to the numerous
implausible elements noted by the asylum authorities in the complainant’s account. It also
notes that, prior to his submission of the medical report of 12 May 2020, adduced in
connection with his third asylum application, six and a half years after his arrival in
Switzerland, the complainant had provided no medical documentation demonstrating that he
was under treatment because he had or had had any of the physical or psychological
conditions that he claimed to have. Moreover, he has still not begun treatment to specifically
address the physical sequelae most characteristic of the sexual abuse that he allegedly
experienced.
4.9
With respect to the new evidence adduced, the medical reports of 31 May and 1 June
2021 are clearly insufficient to alter the conclusions reflected in the decisions and judgments
of the domestic courts, as they offer no additional insight beyond that provided by the medical
certificates and expert opinions previously submitted and, in line with the grounds for the
decision of the Federal Administrative Court on the matter, must be considered irrelevant.
Because the complainant has failed to demonstrate that the acts alleged – namely the acts of
torture, including severe sexual abuse, in Sri Lanka – occurred, the other new evidence is
also not relevant.
Complainant’s comments on the State party’s observations
5.1
On 30 July 2022, the complainant submitted comments, in which he contested the
State party’s arguments. In his view, he has exhausted the available domestic remedies, since
he had stated even in his first application that he had been subjected to ill-treatment, a claim
that he repeated and substantiated in the subsequent special applications. It can therefore in
no way be considered that, as argued by the State party, the complainant has not raised claims
regarding all the acts of torture that he was subjected to and that he still has an avenue of
recourse under domestic law. Moreover, the late disclosure of the sexual abuse has no effect
on the merits of the case, as the complainant had already, in his 2015 interview on his reasons
for seeking asylum, raised the claim that he had been subjected to inhuman and degrading
treatment by the Sri Lankan authorities.
5.2
The complainant considers unwarranted the State party’s requirement that he initiate
a new special procedure at the domestic level in order to put forward the same arguments that
he has already raised in proceedings before the Swiss authorities. The acts of sexual abuse –
which the complainant required lengthy psychiatric treatment, including a visit to a specialist,
in order to reveal – are among the acts of torture that he pointed to in vain throughout the
proceedings. The complainant notes that the State party acknowledges the possibility that a
claim of rape may not be raised until a case has reached the stage of special proceedings and
states that this is indeed true of his case. He expressed such sentiments during the last
procedure and provided a supporting medical report, but the State party failed to meet its
obligation to investigate. In providing the results of a medical examination performed in
accordance with the Istanbul Protocol when submitting his communication to the Committee,
the complainant was carrying out the investigation that should have, in the light of the
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information and evidence provided during the last procedure, been the task of the Swiss
authorities.
5.3
The complainant points out that the latest evidence corroborates his claims, which
were already reflected in the report placed on file during the domestic proceedings. The new
evidence submitted by the complainant to the Committee does not constitute separate grounds
for a new risk of a violation of his rights under articles 3, 14 and 16 of the Convention; rather,
it bolsters the grounds that already existed prior to the proceedings before the Committee.
The State party can at any time decide of its own accord to initiate new asylum proceedings
and grant the complainant a form of protection if it finds that relevant new arguments or
evidence have been put forward in the proceedings before the Committee. In fact, the State
Secretariat for Migration could, of its own accord, now decide to re-examine the case in the
light of all the medical reports – prepared by various independent doctors, including a
forensic doctor and several psychiatrists – that have been added to the file.
5.4
The complainant asserts that, despite his requests, the Swiss authorities at no time
ordered that evidence be gathered, including through medical reports. Since there were
medical expert opinions containing diagnoses characteristic for victims of torture, it was for
the State party to request an updated medical report or an expert medical opinion. By simply
rejecting the complainant’s arguments without a thorough examination, the Swiss authorities
failed in their duty under domestic law and article 3 (2) of the Convention.
5.5
The complainant explains that he had initially not spoken about all aspects of his
experience because, given that he had stolen from the Tamil community affiliated with the
Liberation Tigers of Tamil Eelam, he did not trust the Sri Lankan interpreters. It was only in
the presence of an interpreter with whom he was able to build a relationship of trust that he
was gradually able to open up to the specialists. Moreover, he felt great shame in speaking
about the sexual violence that he had experienced.
5.6
The complainant refers again to the human rights situation in Sri Lanka and argues
that, because he is of Tamil ethnicity, his father and cousin worked for the Liberation Tigers
of Tamil Eelam, he was tortured by the Sri Lankan authorities and he has lived in Switzerland
for an extended period of time, there is no doubt that he has the profile of someone at risk.
His last act of betrayal against his community is plausible, given that his doctors have found
that he is extremely distrustful without being delusional. Lastly, persons associated with the
Liberation Tigers of Tamil Eelam and the Government are looking for and making threats
against his mother and sister, who live in hiding in a church, because they want information
about him.
5.7
The complainant maintains that if he were to return to Sri Lanka, he would not have
access to the necessary care and, moreover, would not receive treatment in a manner
appropriate and adequate under article 14 of the Convention. The country has no
rehabilitation programmes for victims of torture, and healthcare workers are reluctant to treat
such victims for fear that they too will be targeted by the Sri Lankan authorities.
5.8
The complainant expresses his surprise that the State party has questioned the
probative value of the report prepared by a forensic doctor in accordance with the Istanbul
Protocol. The Swiss authorities should then, in order to be able to counter the complainant’s
statements, have ordered a detailed medical report or, at the very least, provided solid grounds
– for example, on the basis of a second expert opinion – for challenging the probative value
of the report.
5.9
As for the allegation that his story is implausible, the complainant states that it is
common for there to be discrepancies in the account of a torture victim.9 Consequently, the
discrepancies in his account tend rather to confirm the truth of his statements, in that they
constitute a common sign of being a torture victim. Furthermore, the Committee has found
that it is perfectly acceptable for rapes to be reported late to national authorities, since the
loss of privacy and the prospect of humiliation that the mere revelation of such acts can entail
9 Committee against Torture, general comment No. 4 (2017), para. 42.
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may cause both women and men to refrain from saying that they have been raped or subjected
to other forms of sexual violence until it is absolutely necessary.10
5.10
The complainant states that on 15 February 2022, he underwent a rectal examination
because of pain that he was experiencing as a result of the sexual assaults that he had been
subjected to during his detention. The medical report confirms the conclusion of the expert
report of 1 June 2021 that there had been sexual torture, thus providing yet another piece of
solid evidence supporting the complainant’s claims. The latest medical report, dated 15 June
2022, refers to the same disorders as the previous medical reports and notes that, given the
serious damage to the complainant’s health, revisiting the traumatic events would be
counterproductive. In other words, for the doctors, there is no doubt that the complainant is
a victim of torture. What is most important now is integrative treatment, involving both
psychiatric care and psychotherapy, which will last several years because of the severity of
the trauma.
5.11
In addition, because of the critical financial and economic situation in Sri Lanka,
persons returned there are at greater risk of poverty. It is likely that the economic crisis and
the shortage of medicines and other basic necessities that it has led to will leave the
complainant without access to the medical care that he urgently needs, potentially
constituting severe inhuman or degrading treatment within the meaning of article 16 of the
Convention.
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.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it
shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. It notes that, in the present case,
the State party argues that the complainant has not exhausted all available domestic remedies,
pointing out that he never raised the claim that he had been sexually abused during his alleged
detention before the asylum authorities and that the medical reports that he had submitted to
the Committee in support of that claim had been issued after the domestic authorities’ last
decision in his case. The Committee then notes the complainant’s arguments that: (a) the late
disclosure of the sexual abuse has no effect on the merits of the case; (b) the acts of sexual
abuse are among the acts of torture that he pointed to throughout the proceedings; and (c) he
felt great shame in speaking about the sexual violence that he had experienced.
6.3
The Committee notes that, in its judgment of 9 October 2020, the Federal
Administrative Court found, inter alia, that the complainant had not been subjected to the
acts of torture alleged to have been committed in September 2013. It observes that the
complainant did not raise the claims of rape and sexual abuse before the authorities of the
State party, nor did he submit the medical reports in his possession that supported that claim,
including a medical report prepared in accordance with the Istanbul Protocol. The Committee
engages in no speculation and is thus unable to establish whether the asylum authorities
would have reached the same conclusion as to whether the alleged acts of torture had occurred
if they had been aware of this claim and the complainant’s new evidence. As a result, the
Committee concludes that, pursuant to article 22 (5) (b) of the Convention, the portion of the
communication related to the claims of rape and sexual abuse is inadmissible because
domestic remedies have not been exhausted.
6.4
However, the Committee considers that, for the purposes of admissibility, the
complainant has provided sufficient information as regards the risk of irreparable harm that
10 V.L. v. Switzerland (CAT/C/37/D/262/2005), para. 8.8.
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11
he would face if he were returned to Sri Lanka. The Committee therefore declares the rest of
the communication 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 communication in the light of all the information made available to it by the parties.
7.2
In the present case, the issue before the Committee is whether the return of the
complainant to Sri Lanka 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 grounds for believing that he or she would be in danger of being subjected to torture.
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 upon return to
Sri Lanka. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights. However, the
Committee recalls that the aim of such 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. Moreover, although past events
may be of relevance, the principal question before the Committee is whether the complainant
would currently run a risk of torture if returned to Sri Lanka.11
7.4
The Committee refers to its general comment No. 4 (2017), according to which the
risk of torture must be assessed on grounds that go beyond mere theory or suspicion. It recalls
that, although the risk does not have to be shown to be “highly probable”, the burden of proof
generally falls on the complainant, who must present an arguable case establishing that he or
she faces a “foreseeable, real and personal” risk. 12 The Committee also recalls that, in
accordance with its general comment No. 4 (2017), it gives considerable weight to findings
of fact made by organs of the State party concerned, while, at the same time, it is not bound
by such findings and instead has the power, under article 22 (4) of the Convention, to make
a free assessment of the information available to it, taking into account all the circumstances
relevant to each case.13
7.5
In the present case, the Committee notes the complainant’s claims that he would be in
danger of facing treatment contrary to article 3 of the Convention if returned to Sri Lanka, as
he would risk detention and acts of torture and ill-treatment, both by the Sri Lankan
authorities because of his perceived connections to the Liberation Tigers of Tamil Eelam and
by the latter because of the theft of a large sum of money from the movement. The Committee
also takes note of the complainant’s assertion that he was detained and ill-treated for five
days in September 2013 by officers of the Criminal Investigation Department. In this regard,
the Committee takes note of the documents provided by the complainant to support his claims
– both those submitted to the Swiss authorities and those which were provided solely to the
Committee after the Federal Administrative Court denied the complainant’s final appeal in
the case relating to his asylum application and which were therefore not submitted to the
authorities of the State party during the asylum proceedings.
7.6
The Committee notes the State party’s reference to the contradictions that the asylum
authorities had identified in the complainant’s account and their conclusion that the
complainant had failed to plausibly argue that he had attracted the attention of the Sri Lankan
authorities. The Committee notes that the Swiss authorities duly examined the form and
substance of the documents supposedly issued by the Sri Lankan authorities and concluded
11 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
12 See, inter alia, Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4; and A.R. v. Netherlands
(CAT/C/31/D/203/2002), para. 7.3.
13 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
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that they were fake. It also takes note of the State party’s argument that the complainant’s
claims regarding the activities that he had carried out for the Liberation Tigers of Tamil
Eelam were implausible in view of his contradictory statements and his assertion that he had
been entrusted with a task as important as transporting substantial sums of money when he
was only 14 years old and then with transporting weapons just one year later. The State party
added that if the complainant had feared harsh reprisals from the Liberation Tigers of Tamil
Eelam for having stolen a large sum of money from them, he would have taken more
precautions when leaving Sri Lanka and with respect to where he lived after arriving in
Switzerland. The Committee notes that the complainant has not provided an explanation for
this.
7.7
In particular, the Committee notes that the Swiss authorities expressed doubts about
the alleged acts of torture, given that the complainant had, according to his own statements,
taken part in a demonstration three days after his release, after having been tortured for five
days. It also notes the State party’s argument that the complainant has never been arrested,
imprisoned or involved in court proceedings, nor have the Sri Lankan authorities ever truly
taken steps to prosecute or summon him. The Committee further observes that the
complainant has provided no evidence to challenge the specific arguments given by the Swiss
authorities for rejecting the evidence that he had adduced in support of his allegations.
7.8
The Committee takes note of the complainant’s medical assessment report, which
indicates that he is suffering from post-traumatic stress disorder. However, the Committee
notes that, during the asylum procedure, the complainant did not submit any medical
documents to support his claims, even though he apparently had them in his possession. The
majority of the complainant’s medical reports were presented after the Federal
Administrative Court had denied his final appeal in the case relating to his asylum application
– a single one was submitted during the final appeal – and were therefore not submitted to
the authorities of the State party during the asylum proceedings.
7.9
The Committee notes, however, that even if it were to accept the claim that the
complainant was subjected to acts of torture and ill-treatment in the past, the question is
whether he remains, at present, at risk of torture in Sri Lanka in the event of his forcible return
there.14 The Committee also notes that, according to its practice, it is normally for the
complainant to present an arguable case.15 In the present case, the Committee is of the view
that the complainant has not provided credible information suggesting that the Sri Lankan
authorities are currently interested in him.
7.10
With respect to the complainant’s argument relating to the human rights situation in
Sri Lanka, the Committee recalls that the occurrence of human rights violations in the
complainant’s country of origin is not, in itself, sufficient for it to conclude that the
complainant is personally at risk of being tortured there. The Committee notes that the
complainant had ample opportunity, during several asylum proceedings, to provide the State
Secretariat for Migration and the Federal Administrative Court with supporting evidence and
more information about his claims. However, on the basis of the evidence submitted to the
authorities of the State party, the Committee cannot conclude that the domestic authorities
acted arbitrarily in finding that the complainant would not personally be at risk of torture or
inhuman or degrading treatment if he returned to Sri Lanka.
8.
On the basis of the above, and in the light of the material before it, the Committee
considers that the complainant has not provided sufficient evidence to enable it to conclude
that his deportation to his country of origin would expose him to a real, foreseeable, personal
and present risk of being subjected to treatment contrary to article 3 of the Convention.
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the
return of the complainant to Sri Lanka would not constitute a breach of article 3 of the
Convention by the State party.
14 N.K. v. Switzerland, para. 7.10.
15 See, for example, N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9; C.A.R.M. et al. v.
Canada (CAT/C/38/D/298/2006), para. 8.10; and M.A.K. v. Germany (CAT/C/32/D/214/2002),
para. 13.5.