opencaselaw.ch

CAT/C/80/D/1086/2021

S.P. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2024-07-12 · en CH

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

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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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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.