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.24-14884(E)
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1104/2021**, ***
Communication submitted by:
S.S. (represented by counsel, Vadim Drozdov)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
1 November 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 10 November 2021 (not
issued in document form)
Date of adoption of decision:
12 July 2024
Subject matter:
Deportation to Sri Lanka
Procedural issue:
None
Substantive issues:
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, 16
1.1
The complainant is S.S., a national of Sri Lanka born in 1994. He applied for asylum
in Switzerland, but his application was rejected. He is facing deportation to Sri Lanka and
submits that his deportation would constitute a violation by the State party of articles 3 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 10 November 2021, pursuant to rule 114 (1) of its rules of procedure, the
Committee, acting through its Rapporteur on new complaints and interim measures,
requested the State party not to deport the complainant to Sri Lanka while the communication
was being considered by the Committee.
Factual background
2.1
The complainant is of Tamil ethnicity. Before 1990, and for about five to six years,
his father was a member of the Liberation Tigers of Tamil Eelam. The complainant worked
* Reissued for technical reasons on 23 October 2024.
** 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/1104/2021*
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
20 September 2024
Original: English
CAT/C/80/D/1104/2021
2
as a freelance bricklayer and had a colleague who was involved with the movement.1 In
May 2012, he accompanied his colleague to a meeting, but the complainant did not personally
participate in that meeting. In February or March 2012 and in May 2012, the complainant
was allegedly detained, interrogated and tortured by officers of the Criminal Investigation
Department in relation to his connections with the Liberation Tigers of Tamil Eelam.2 He
was released after every detention. The complainant lived with his parents and younger sister,
but in March 2014, he went to live with his uncle and then with a pastor known to his mother
because he feared being arrested again. In August 2015, the complainant’s father told him
that one of his friends, whom the officers of the Criminal Investigation Department had
interrogated about the complainant’s whereabouts, had been arrested. 3 The complainant
therefore decided to leave Sri Lanka on 9 October 2015, with forged documents.
2.2
The complainant arrived in Switzerland on 12 October 2015 and filed his application
for asylum the same day. The State Secretariat for Migration interviewed him on 12 October
2015 and on 15 and 28 June 2017. During the interview of 28 June 2017, for the first time,
the complainant declared that he was homosexual and had had a partner in Switzerland since
October 2015, who was also a Tamil asylum-seeker. The complainant wanted to live with
that person in Switzerland because it was not possible to do so in Sri Lanka. His family would
not accept his living with a man.
2.3
On 6 July 2017, the State Secretariat for Migration rejected the complainant’s asylum
application and ordered his return. It found the complainant’s claims of persecution to be not
credible, noting, for example, that in his personal interview, he had mentioned his detention
and ill-treatment in June 2012, but not the renewed detention, questioning and ill-treatment
in February and March 2014. When asked about this in the supplementary hearing, the
complainant declared that he had been repeatedly stopped in the first interview and told that
he could give only a brief account.
2.4
The State Secretariat for Migration also noted considerable differences in his accounts.
According to the version given at the first hearing, he had learned from the media or a
newspaper report that his work colleague had been murdered in 2013. At the second hearing,
he stated that he had not heard anything about his work colleague since June 2012. Then,
although he gave a detailed account during the second hearing, the complainant did not
mention anything about a search by the security forces during the time that he was living with
the pastor or after he had left the country, although he did mention those events during the
first interview. The State Secretariat further pointed to other alleged searches by the Sri
Lankan authorities mentioned during one interview, but not mentioned in the other.
2.5
The State Secretariat for Migration was also of the view that the complainant’s linear
narrative style and adherence to details made it doubtful that he had actually reported what
he had experienced. It rather gave the impression that he had reproduced memorized facts.
That impression was further strengthened when comparing his account of his release from
detention made in the supplemental hearing with the corresponding account made in the
initial hearing. The almost identical presentations with the same order of individual elements
showed that it was not a description of what the complainant had experienced, but a mere
reproduction of what he had learned by heart. For those reasons, the State Secretariat did not
consider it credible that the complainant had been detained twice in Sri Lanka and was wanted
by the Criminal Investigation Department. The State Secretariat noted that, assuming that the
complainant’s father’s former membership in the Liberation Tigers of Tamil Eelam was true,
his father had apparently had no problems with the Sri Lankan authorities because of it. The
complainant did not report any measures taken against his father, who was still living at his
place of residence. It was therefore not clear why the Sri Lankan authorities would have any
interest in persecuting the complainant because of his father’s alleged membership in the
1980s.
2.6
As to the complainant’s claim that he was homosexual, the State Secretariat for
Migration noted that, according to his statements, the complainant had never had any
1 No further details are available.
2 No further details are available. The complainant declared, however, before the Swiss migration
authorities, that he had been detained for 18 days in June 2012.
3 No further details on the reasons for his friend’s arrest are available.
CAT/C/80/D/1104/2021
3
problems in Sri Lanka because of his claimed homosexuality and nobody knew about it. Even
assuming that his alleged homosexuality becomes known in the complainant’s environment
in Sri Lanka, it may not automatically be assumed that serious disadvantages within the
meaning of the Asylum Law will occur. When asked about possible problems in his home
country due to his claimed homosexuality, the complainant simply said that his family would
not accept it. For the State Secretariat, this declaration suggested conflicts with the
complainant’s family, without indicating a well-founded fear of danger to life, limb or
freedom or of measures that would cause unbearable psychological pressure.
2.7
The State Secretariat for Migration also expressed doubts as to the complainant’s
homosexuality, which was brought forward only in the course of the supplementary hearing,
because his statements about how he first became conscious of his homosexuality were
inconsistent. At one point, he stated that he had already become conscious of it in Sri Lanka,
but was afraid to express it because his culture would not accept such people. At another
point, he stated that he had only discovered in Switzerland that he was gay. The
complainant’s answers to questions about possible problems in Sri Lanka because of his
sexual orientation were also contradictory. On one occasion, the complainant declared that
he had been interested in a few young men in Sri Lanka, but this had not caused any problems.
On another occasion, the complainant declared that he did not express interest in young men
out of fear because it is taboo in Sri Lanka and other people would think that he was mentally
ill. Since the complainant was afraid of being considered to be mentally ill, it would have
been expected that his claimed homosexuality would have been a problem, at least for the
complainant personally, in Sri Lanka. Since that claim was not relevant to asylum, however,
the State Secretariat did not consider it necessary to make a final assessment of its credibility.
2.8
On 2 April 2019, the Federal Administrative Court dismissed the complainant’s
appeal. It noted that the second alleged detention in February 2014 had lasted almost three
weeks, but that the complainant had mentioned the second alleged detention in February 2014
only at his second hearing. It therefore did not seem plausible.
2.9
The Federal Administrative Court further noted that, at the hearing on 15 June 2017,
the complainant had reported in great detail about the alleged persecution. When the officer
of the State Secretariat for Migration asked him to state in a few sentences what had led to
his departure from Sri Lanka, the complainant had continued with a detailed account. For the
Court, the complainant’s linear narrative and his insistence on providing specific details made
it doubtful that he had reported at his interviews what he had actually experienced rather than
reproducing memorized facts with respect to events that had taken place several years before.
That impression was further strengthened when the Court compared the statements the
complainant had made regarding his release from detention in the supplementary hearing
with the corresponding statements he had made in the initial hearing. For the Court, the
almost identical descriptions, with the same order of individual elements, suggested that he
was not describing what he had actually experienced but, rather, that he had learned all the
details by heart and had made sure that he did not leave anything out.
2.10
The Federal Administrative Court judged that the complainant had not been able to
credibly show that he had been subjected to persecution measures relevant to asylum before
leaving his country. On the contrary, he had resided in Sri Lanka until 9 October 2015, which
meant that he had lived in his home country for around six years after the end of the war.
There were no risk factors that could have triggered an interest in persecution on the part of
the Sri Lankan authorities. It was not evident why he would subsequently come to the
attention of the authorities upon his return to Sri Lanka. It was also not credible that he had
left Sri Lanka illegally with forged travel documents, especially since, according to
information from the Italian authorities, he had applied for a visa on 14 May 2015 with a
passport.
2.11
Regarding the complainant’s homosexuality, which he asserted for the first time
during the retranslation of the second hearing, the Federal Administrative Court noted that,
irrespective of the question of the credibility of the claim, the complainant had not asserted
that he had been subjected to disadvantages relevant under asylum law because of it, which
is why it was not deemed necessary to go into further detail. That circumstance was taken
into account, however, when examining the obstacles to removal.
CAT/C/80/D/1104/2021
4
Complaint
3.1
The complainant claims that his deportation to Sri Lanka would constitute a violation
of his rights under articles 3 and 16 of the Convention because there are substantial grounds
for believing that he risks being subjected to torture or other ill-treatment in Sri Lanka due to
his homosexual orientation.
3.2
The complainant points out that information about the human rights situation in
Sri Lanka shows that homosexuals are prosecuted, tortured and ill-treated by the authorities
due to their sexual orientation and lack protection. He claims that, in accordance with the
approach used by the Committee,4 the Office of the United Nations High Commissioner for
Refugees (UNHCR)5 and the European Court of Human Rights,6 the complainant did not
have to experience past persecution for his homosexuality to rely on it as a ground for asking
for international protection and protection against the risk of torture or other ill-treatment. He
therefore claims that the Swiss authorities failed to examine in a proper manner his risk of
torture or other ill-treatment stemming from his homosexuality, despite his bringing that risk
to their attention.
3.3
The complainant explains that he disclosed his homosexuality only during the
retranslation of the second hearing because of his feeling of shame caused by its being taboo
in his native culture. He clarifies that he realized that was homosexual only in Switzerland
after starting a relationship. Already in Sri Lanka, however, he had been attracted to men but
had not expressed his sexual orientation and had concealed it to avoid harm and stigma.
Considering the UNHCR approach,7 it cannot be expected that he continue to conceal his
sexual orientation in order to avoid the risk of torture or other ill-treatment if returned to
Sri Lanka.
State party’s observations on the merits
4.1
On 10 May 2022, the State party submitted its observations on the merits. As a
preliminary remark, it informed the Committee that the complainant had not mentioned in
his communication to the Committee the fact that, on 14 October 2019, he had lodged a
second application for asylum in which he claimed that he had voluntarily returned to Sri
Lanka on 3 June 2019, where he was interrogated in the airport, then detained and ill-treated
for almost a month. While in detention, he was visited by his parents. A date for a judicial
hearing was fixed, but he left Sri Lanka on a fishing boat on 12 July 2019 and returned to
Switzerland on 14 October 2019.
4.2
After verifications performed by the Swiss Embassy in Colombo regarding the
complainant’s situation and the documents produced – among which, an arrest warrant and
witness summons – it was concluded that the documents had been forged. A staff member of
the Embassy also visited the complainant’s family, which declared that they had not seen nor
met with the complainant since 2008, but only maintained monthly telephone contact. None
of his family members mentioned any documents related to any proceedings. On 24 August
2020, the State Secretariat for Migration rejected his new application for asylum. In addition
to the discrepancies between the complainant’s and his family’s allegations, the State
Secretariat noted that the complainant had not produced any document as evidence of his
return to Sri Lanka after the first asylum procedure. The decision was confirmed by the
Federal Administrative Court on 20 June 2021.
4.3
Regarding the complainant’s claims based on his homosexuality, the State party
recalls that they were mentioned only during his third hearing with the migration authority.
4 General comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of
article 22, para. 45.
5 UNHCR, Guidelines on International Protection No. 9: claims to refugee status based on sexual
orientation and/or gender identity within the context of article 1A (2) of the 1951 Convention and/or
its 1967 Protocol relating to the Status of Refugees, 23 October 2012, para. 32.
6 European Court of Human Rights, B. and C. v. Switzerland, Applications Nos. 889/19 and 43987/16,
Judgment, 17 November 2020, para. 57.
7 Guidelines on International Protection No. 9, paras. 31 and 32.
CAT/C/80/D/1104/2021
5
Both the State Secretariat for Migration and the Federal Administrative Court examined his
allegations but the complainant disagrees with the domestic decisions.
4.4
The State party acknowledges that the human rights situation in Sri Lanka is worrying
in many respects8 but points out that the Federal Administrative Court has already thoroughly
examined that situation and the risk of torture in the event of return in a reference judgment,9
according to which 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. In the present case, the complainant has failed to
plausibly argue that he had attracted the attention of the Sri Lankan authorities.
4.5
With regard to the general situation of sexual minorities in Sri Lanka, the State party
submits that, although consensual sexual relations between persons of the same sex are
prohibited by law, there have been no criminal prosecutions for homosexuality since 1948.
The Constitution of Sri Lanka prohibits discrimination on the basis of race, religion, language,
caste, sex or political opinion. Sri Lanka has also ratified several human rights conventions.
The Sri Lankan Government undertakes not to discriminate against people on the grounds of
their sexual orientation or gender identity. Social acceptance of non-heterosexual lifestyles
is generally low and harassment and the use of force by the police are frequent. It can be
denied, however, that the State persecutes sexual minorities in Sri Lanka.
4.6
The State party recalls that the complainant has never been active in the Liberation
Tigers of Tamil Eelam nor has he been the subject of any legal proceedings in Sri Lanka or
behaved in a way that might draw the negative attention of the authorities. His father, who
had allegedly been a member of the Liberation Tigers of Tamil Eelam, has not had any
problems with the Sri Lankan authorities either, with the family able to live peacefully in the
same place for a long time.
4.7
The State party also points out that the complainant’s alleged return to Sri Lanka in
June 2019 does not support his expressed fear of being persecuted there because of his sexual
orientation, but rather confirms the doubts expressed by the migration authorities. Finally,
the complainant produced false documents in support of his second asylum application, in
which he did not include the element of sexual orientation.
Complainant’s comments on the State party’s observations
5.1
On 24 March 2023, the complainant submitted comments in which he contested the
State party’s arguments. He clarifies that he did not mention the second asylum proceedings
in his communication before the Committee, in which he raised arguments concerning his
risk of being subjected to torture or other ill-treatment in Sri Lanka in violation of articles 3
and 16 of the Convention only on the ground of his sexual orientation, because his sexual
orientation had been raised only in the first set of asylum proceedings.
5.2
The complainant therefore reiterates his allegations of irregularities in the asylum
proceedings. He refers again to the situation of homosexuals in Sri Lanka and argues that the
State party’s claim that there have been no criminal prosecutions for homosexuality since
1948 is misleading. On the contrary, in 2020, Human Rights Watch referred to the words of
a lawyer from Sri Lanka, according to whom he, along with other counsel, represented six
defendants in the previous 12 months accused of male homosexual conduct.10 Human Rights
Watch also indicated that, in the previous few years, Sri Lankan police had raided hotels and
other locations to arrest people for offences relating to consensual same-sex conduct.11 The
8 See CAT/C/LKA/CO/5.
9 Federal Administrative Court, Judgment E-1866/2015, 15 July 2016.
10 Human Rights Watch, “Sri Lanka: forced anal exams in homosexuality prosecutions”, 20 October
2020, available at https://www.hrw.org/news/2020/10/20/sri-lanka-forced-anal-exams-homosexuality-
prosecutions.
11 Ibid.
CAT/C/80/D/1104/2021
6
2018 Sri Lankan police performance report indicates that in 2016, 2017 and 2018, police
brought charges of homosexuality against, respectively, 33, 6 and 9 men.12
5.3
The complainant points out that, according to a 2021 report by the Department of State
of the United States of America, which was cited by the State party, human rights
organizations reported that police used the threat of arrest to assault, harass and sexually and
monetarily extort LGBTQI+ persons.13 In June 2022, it was reported that a homosexual
couple had been arrested in Sri Lanka under the Penal Code and subsequently admitted to the
hospital and subjected to a psychiatric evaluation.14
5.4
The complainant cannot be expected to conceal his sexual orientation in Sri Lanka. If
he is removed to Sri Lanka, his homosexuality will come to the attention of the authorities as
a result of his not following social norms and finding a new partner, which will result in
rumours and growing suspicion. On that basis, the complainant will be subjected to
prosecution, torture or other ill-treatment by State and non-State actors. The Swiss authorities,
therefore, did not sufficiently assess the risk of torture or other ill-treatment for the
complainant as a homosexual person in Sri Lanka emanating from State and non-State actors
and the availability of State protection, in violation of its procedural obligations under articles
3 and 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
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not contested that the complainant has exhausted all available domestic
remedies. The Committee therefore finds that it is not precluded from considering the
communication under article 22 (5) (b) of the Convention.
6.3
As the Committee finds no further obstacles to admissibility, it declares the
communication submitted under articles 3 and 16 of the Convention 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 substantial 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
12 See https://www.parliament.lk/uploads/documents/paperspresented/performance-report-srilanka-
police-2018.pdf.
13 Department of State, Sri Lanka 2021 Human Rights Report, p. 43.
14 Tamil Guardian, “Sri Lankan police arrest homosexual couple in Amparai,” 27 June 2022,
https://www.tamilguardian.com/content/sri-lankan-police-arrest-homosexual-couple-amparai.
CAT/C/80/D/1104/2021
7
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 consistent
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 currently runs a risk of torture if returned to Sri Lanka.15
7.4
The Committee recalls its general comment No. 4 (2017) on the implementation of
article 3 of the Convention in the context of article 22, according to which the risk of torture
must be assessed on grounds that go beyond mere theory or suspicion. 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. 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.16
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 acts of torture and ill-treatment from State and non-State actors because of his
homosexuality. In that connection, the Committee takes note of the complainant’s declaration
that his complaint is not related to perceived connections to the Liberation Tigers of Tamil
Eelam. It also takes note of the fact that the complainant has neither clearly demonstrated nor
produced supporting evidence in respect of the alleged torture or ill-treatment in Sri Lanka.
7.6
The Committee notes the complainant’s reference to the UNHCR guidelines for
investigating grounds for asylum relating to sexual orientation, according to which
ascertaining the applicant’s lesbian, gay, bisexual, transgender and intersex background is
essentially an issue of credibility.17 The Committee notes, however, the Swiss migration
authorities’ findings of contradictions in the complainant’s statement that he is homosexual,
as well as the fact that, according to his own statements, the complainant never had any
problems in Sri Lanka because of his claimed homosexuality. It also notes the State party’s
reference to consensual sexual relations between persons of the same sex being prohibited by
law in Sri Lanka, harassment and the use of force by the police and the low social acceptance
of non-heterosexual lifestyles but without evidence that the State of Sri Lanka had undertaken
to persecute sexual minorities.
7.7
While noting the Sri Lankan Supreme Court’s pronouncement that consensual same-
sex activity should not result in custodial sentences, the Committee is aware that the situation
of homosexuals in the country remains a concern. 18 It nevertheless reiterates that the
occurrence of human rights violations in a complainant’s country of origin is not, of itself,
sufficient for it to conclude that a complainant would face a personal risk of being tortured
there. The Committee also notes that the complainant had ample opportunity to provide the
State Secretariat for Migration and the Federal Administrative Court with supporting
evidence and more information about his claims.
7.8
In the light of the considerations above and on the basis of all the information
submitted to it by the complainant and the State party, including on the situation of
homosexuals in Sri Lanka, the Committee considers that the information on file does not
allow it to conclude that the decision of the domestic authorities was arbitrary in finding that
the complainant would not face a real, foreseeable, personal and present risk of being
subjected to torture if he were to be deported to Sri Lanka or that the authorities of the State
15 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
16 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
17 UNHCR, Guidelines on International Protection No. 9, para. 62.
18 CCPR/C/LKA/CO/6, para. 18.
CAT/C/80/D/1104/2021
8
party failed to conduct a proper investigation into his allegations in accordance with the
UNHCR guidelines.
8.
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 articles 3 and 16 of
the Convention by the State party.