opencaselaw.ch

CAT/C/80/D/1106/2021

I.A. 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.24-13958 (E) 090824 090824

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1106/2021*, **

Communication submitted by:

I.A. (represented by counsel, Mejreme Omuri)

Alleged victim:

The complainant

State party:

Switzerland

Date of complaint:

26 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 30 November 2021 (not

issued in document form)

Date of adoption of decision:

12 July 2024

Subject matter:

Deportation to Sri Lanka

Procedural issues:

Exhaustion of domestic remedies; level of

substantiation of claims

Substantive issues:

Risk to life or 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 I.A., a national of Sri Lanka born in 1990. 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, 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 30 November 2021, pursuant to article 114 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.

* 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/1106/2021

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

12 August 2024

Original: English

CAT/C/80/D/1106/2021

2

GE.24-13958

Factual background

2.1

The complainant is of Tamil ethnicity. In 2007, he met a man who had links with the

Liberation Tigers of Tamil Eelam and who asked the complainant to help with transporting

packages, filling out forms in Sinhala, and organizing overnight accommodation for others.

The complainant also translated documents, such as birth certificates and passports,

presuming that he was assisting Tamils who were fleeing. He performed those tasks for a

small fee until the end of 2008, when he lost contact with that man.

2.2

In April or May 2014, the complainant met a man in Colombo, who approached him

and told him that he had once stayed at his house. Three weeks later, three officers came to

the complainant’s house to arrest him, one of them was the same person who approached him

earlier. They took him to an unknown location. They put him in a room, where two officers

punched him several times in the face and sprayed him in the face with cold water. The

officers asked him numerous questions and told him that they knew about his activities. One

of the officers attempted to insert a glass bottle into his anus, but the complainant was able

to fight back, get his arm free and stand up. Then he was hit with an iron bar on his left arm,

after which he fainted. He regained consciousness at the public hospital in Colombo, in the

presence of his parents. His arm was broken, so he needed to undergo surgery. Due to an

infection, the complainant was hospitalized for two and a half months.1 After the complainant

recovered, the officers again tried to take him away, but his father managed to prevent this

by paying money. Then his father planned for his son to flee Sri Lanka in September 2015

with the help of a smuggler and a fake passport.

2.3

The complainant arrived in Switzerland on 27 September 2015 and applied for asylum.

The State Secretariat for Migration interviewed him on 5 October 2015, 6 April 2017 and

13 June 2019. The complainant declared that two months after his escape, his elder brother

was taken in by security forces for questioning and was never seen again – either he was in

hiding or he had been abducted and detained or killed by the security forces. The

complainant’s parents were also visited several times by members of the Criminal

Investigation Department and questioned about the whereabouts of their son. They were

threatened and also taken to the police station for questioning. His parents could no longer

bear the constant harassment and moved to another district to live with the complainant’s

aunt. However, according to neighbours, the security forces continued to visit the family

home even after the parents moved away.

2.4

On the basis of the information provided by the complainant, the State Secretariat for

Migration asked the Embassy of Switzerland in Sri Lanka to verify whether the brother’s

whereabouts were known and to confirm the location of the other family members. According

to the Embassy’s report of 13 May 2020, the complainant’s parents assumed that the

complainant’s brother was in contact with people close to the Liberation Tigers of Tamil

Eelam. He would have done small jobs for them, as he spoke and wrote Sinhalese well. Some

eight and a half or nine years ago, he did not return home and has since disappeared. After

his disappearance, unknown people continued to ask about him. The complainant himself

was threatened and beaten, which is why he spent three months in hospital. During his stay

in hospital, no one asked to see him. After the complainant’s departure, unknown people

asked to see him. The parents then moved to live with the complainant’s aunt. During the

coronavirus disease (COVID-19) pandemic, the parents lived in the family home in Colombo,

but otherwise, they lived with the aunt. The Sri Lankan medical certificate produced by the

complainant proved to be authentic. In his replies of 23 June and 6 September 2020, the

complainant, represented by a lawyer, submitted comments on the Embassy’s report and

refuted the information provided by his parents, deeming it partly inaccurate.

2.5

On 16 September 2020, the State Secretariat for Migration rejected the complainant’s

asylum application and ordered his return to Sri Lanka. It found the complainant’s claims to

be inconsistent and not supported by any evidence. If the complainant had indeed been

arrested in May 2014 by the security forces in the presence of his parents, and if he had

subsequently been visited on several occasions in hospital, one might have expected a

1 In the asylum proceedings, the complainant provided a Sri Lankan medical certificate attesting to his

fractured arm.

CAT/C/80/D/1106/2021

GE.24-13958

3

detailed account of the events, as well as concordance with the results of the Embassy’s

investigation. However, the information gathered from the parents proved to be inconsistent

with the complainant’s statements. In particular, according to the parents’ explanations, only

the complainant’s brother had any contact with the Liberation Tigers of Tamil Eelam,

whereas the complainant had declared that his brother did not have any connection with the

movement. The State Secretariat for Migration also noted that, while the injury to the

complainant’s arm was credible, its alleged causes were not.

2.6

On 4 December 2020, the Federal Administrative Court dismissed the complainant’s

appeal for lack of credibility of the alleged State persecution in Sri Lanka and of the alleged

ill-treatment. Although it could not be ruled out that the complainant had suffered violence

in his home country and had broken his wrist, he had failed to credibly demonstrate that this

was due to State persecution.

2.7

On 12 April 2021, the complainant requested the State Secretariat for Migration to

review its decision of 16 September 2020. He produced a medical report dated 11 March

2021 2 and invoked the Committee’s jurisprudence on the accuracy and coherence of

statements made by torture victims.3 He also mentioned that his father had suffered a heart

attack after the ruling of the Federal Administrative Court and had died.

2.8

On 13 May 2021, the State Secretariat for Migration rejected the complainant’s

request for reconsideration of its decision because, in the medical report, the doctors only

relied on the complainant’s statements on the causes of the psychological disorders, which

had been classified as implausible by the State Secretariat and by the Federal Administrative

Court.

2.9

On 5 July 2021, the Federal Administrative Court rejected the complainant’s appeal

insofar as he alleged, based on documents, a risk of persecution in Sri Lanka in the event of

his return. However, the Court considered that the State Secretariat for Migration had not

fully clarified the evolution of the complainant’s state of mental health and whether this

constituted an obstacle to his return. To that extent, it admitted the appeal and referred the

matter back to the State Secretariat for Migration.

2.10

On 27 July 2021, the State Secretariat for Migration dismissed again the

complainant’s request for reconsideration on the point at issue. It pointed out that the

complainant had not claimed any psychological problems during the first asylum procedure.

On the contrary, those problems would have appeared after the ruling of the Federal

Administrative Court of 4 December 2020. To that extent, the psychological and psychiatric

problems would be, at least partially, attributable to the negative evolution of the asylum

procedure. The State Secretariat for Migration further noted that, according to the medical

file,4 the complainant’s fears for his family and his guilty conscience following the death of

his father were also at the root of his problems. In addition, the State Secretariat for Migration

noted that the complainant, who had grown up in Colombo, could benefit from treatment in

that country and that the necessary medication was available in Colombo.

2.11

On 6 October 2021, the Federal Administrative Court dismissed the complainant’s

appeal. It took into account a new medical report dated 28 August 2021 and judged that it

was based on the complainant’s allegations and therefore may be regarded as circumstantial

evidence, but not as evidence of the allegations of persecution. Since the Court also had

doubts about the complainant’s status as a victim of torture, the request for evidence for the

preparation of an expert opinion by the psychotherapist in accordance with the Manual on

the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment (Istanbul Protocol) was rejected under these

circumstances. The Court also concluded that no serious deterioration of health could be

inferred from the medical reports.

2 Which confirmed that the complainant was undergoing inpatient psychiatric treatment since 28 January

2021 due to a depressive episode, as well as a persistent personality change following extreme stress

with preceding post-traumatic stress disorder.

3 Alan v. Switzerland (CAT/C/16/D/21/1995), para. 11.3.

4 Mentioning that the complainant was suffering from post-traumatic stress disorder, a major depressive

episode, mental and behavioural disorders related to alcohol use, and prolonged grief disorder.

CAT/C/80/D/1106/2021

4

GE.24-13958

2.12

Faced with the risk of being deported to Sri Lanka, the complainant commissioned a

physical and psychological examination in accordance with the Istanbul Protocol. 5 The

physical examination of 5 November 2021 revealed that the complainant had fractures of

both forearm bones that would be highly consistent with being struck with an object, such as

an iron bar. They could have been caused by the trauma described as there are few other

possible causes. The scars on the right chest, the left lower abdomen and on both arms and

legs could have developed in 2014 and are non-specific. Their origin would be, at least

partially, consistent with being kicked, but there are many other possible causes. The experts

concluded that, taken as a whole, the healed fractures of the left forearm in the X-ray and the

findings made during the physical examination were consistent with the allegations of torture

and abuse. In the psychological report dated 16 November 2021, the experts noted that the

described symptoms of post-traumatic stress disorder were highly likely to have occurred as

a result of the alleged mistreatment.6

Complaint

3.1

The complainant claims that his deportation to Sri Lanka would constitute a violation

of his rights under articles 3, 14 and 16 of the Convention.

3.2

The complainant points out that he suffers from a serious illness. Even if he could

seek treatment in Sri Lanka, the proximity to the traumatic experiences and his mistrust

would make it almost impossible for him to talk about his traumatic experiences, which in

turn would be necessary for successful treatment. In the event of forced repatriation, the

complainant would be confronted with the security forces, which would most likely lead not

only to an intensification of the existing symptoms of post-traumatic stress disorder, but also

to retraumatization. It is therefore clear that his removal poses a specific high risk to his life

and would thus be in violation of articles 3 and 16 of the Convention.

3.3

Invoking article 14 of the Convention, the complainant submits that there are no

specific rehabilitation programmes and centres in Sri Lanka, and alternative services are not

able to provide the necessary services to victims of torture.7 Even if there were rehabilitation

facilities, it is clear for the complainant that the safe environment required for this is not

available due to his experiences in his home country and the fears associated with them.

State party’s observations on admissibility and the merits

4.1

On 16 May 2022, the State party submitted its observations. It noted that the

complainant produced before the Committee two expert reports that had not been submitted

to the asylum authorities. It thus considers that the complainant has not exhausted all

domestic remedies, given that he had the possibility to request a re-examination of his asylum

application based on new evidence.

4.2

As far as the alleged violation of article 14 of the Convention is concerned, the State

party notes that it has not been established that public officials were involved in the acts that

led to the complainant’s condition. As such involvement is inherent in the acts prohibited by

articles 1 and 16 of the Convention – and therefore in the concept of “victim” in article 14 –

the State party considers that the complainant cannot be qualified as a victim within the

meaning of article 14. It follows that article 14 is not applicable in the present case, hence his

claim is incompatible ratione materiae with the Convention.

4.3

On the merits, the State party reiterates the arguments made by the Swiss asylum

authorities. It acknowledges that the human rights situation in Sri Lanka is worrying in many

respects, 8 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

5 The physical examination took place at the Institute of Forensic Medicine at the University of Bern and

psychological examination was conducted at Les Toises – Psychiatry and Psychotherapy Centre.

6 This report was drawn up by the complainant’s treating psychotherapist.

7 Swiss Refugee Council, “Sri Lanka: Zugang zu Rehabilitationsbehandlungen für Folteropfer in Sri

Lanka” (Bern, 2020), p. 5 (in German).

8 See CAT/C/LKA/CO/5.

9 Federal Administrative Court, Judgment, No. E-1866/2015, 15 July 2016.

CAT/C/80/D/1106/2021

GE.24-13958

5

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.

4.4

The State party notes that, in the subsequent proceedings, the complainant emphasized

his state of health and no longer claimed to be exposed to a present and personal risk of

torture in the event of deportation. Neither the State Secretariat for Migration nor the Federal

Administrative Court questioned the fact that the complainant had been subjected to physical

violence in Sri Lanka. However, they concluded that, given the implausibility of the

complainant’s account, the lower-arm bone fractures must have had causes other than those

indicated by him. The State party also notes that the communication does not contain any

indication that the complainant would be considered a threat to the State of Sri Lanka in the

eyes of the regime.

4.5

The State party then notes that, according to the medical report of 5 November 2021,

it is possible that a blow from an iron bar caused the fracture in the complainant’s arm,

however, in that report, the experts do not provide any solid evidence concerning the exact

circumstances of the blow. The same with the other scars, where the experts concluded that

they may also have had other causes. For the State party, in a context in which the domestic

authorities have repeatedly found the complainant’s allegations of persecution to be

implausible, based on various sources of information, the forensic medical institute’s expert

opinion does not provide any new and convincing information on the causes of the injuries

and scars alleged by the complainant.

4.6

As regards the expert opinion of 16 November 2021, while it was carried out in

accordance with the Istanbul Protocol and therefore had greater scientific probative value,

the State party notes that the expert opinion was commissioned by the complainant himself,

and that the expert in psychology is also his treating psychotherapist. That inevitably leads

to a major conflict of interest between the role of objective expert and that of therapist for the

person being assessed. That conflict, which cannot be resolved, must be taken into account

when assessing the psychiatric and psychological expertise.

4.7

Besides those reservations regarding the psychological assessment, the State party

notes that the psychological disorders invoked by the complainant were already known to the

domestic authorities at the time of the asylum proceedings and were the subject of those

proceedings. The expert opinion of 16 November 2021 therefore does not bring any new

essential elements to light. The experts conclude that the psychological symptoms reported

by the complainant and observed during the investigation, as well as their evocation, are as

consistent as possible with the ill-treatment alleged by the Sri Lankan security forces. In their

view, the symptoms of post-traumatic stress disorder were most likely caused by the

complainant’s alleged ill-treatment. However, the experts do not explain the reasons why

they came to that conclusion and excluded with very high probability other possible causes.

The State party therefore considers that the expert report of 16 November 2021 does not

prove the alleged torture by the Sri Lankan security forces.

Complainant’s comments on the State party’s observations

5.1

On 11 September 2023, the complainant submitted comments, in which he contested

the State party’s arguments. As regards the State party’s plea of inadmissibility for failure to

exhaust domestic remedies, the complainant submits that the State party fails to recognize

that the expert opinion or the explanations contained therein do not constitute new facts or

evidence to support new allegations, but additional evidence to support his allegations of

torture and ill-treatment, and his fear of being persecuted again. The new expert reports are

of great importance in assessing whether there has been a violation of the complainant’s right

to rehabilitation under article 14 of the Convention. The complainant also considers that there

is no evidence to prove that the experts in charge of the expert report of 16 November 2021

did not assess the situation objectively.

CAT/C/80/D/1106/2021

6

GE.24-13958

5.2

As regards the inconsistencies found by the Swiss authorities following the

investigation by the Embassy of Switzerland in Sri Lanka, the complainant declared that his

parents did not trust the Embassy staff and did not tell the truth in order to protect him. Then

he refers again to the human rights situation in Sri Lanka and argues that, because he is known

to the Sri Lankan authorities as a suspected opponent of the regime with connections to the

Liberation Tigers of Tamil Eelam and given the fact that the security forces have made

repeated enquiries about his whereabouts, he would, in the event of return, risk facing

treatment contrary to article 3 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. The Committee notes that, in the

present case, the State party has contested the exhaustion of all available domestic remedies

by the complainant because he did not request a re-examination of his case in order to allow

the competent national authorities to evaluate the two new expert reports that had been

presented by the complainant in his complaint to the Committee. The State party also claims

that, in respect of his claim under article 14 of the Convention, the complainant does not have

victim status because it has not been established that public officials were involved in the

treatment alleged by the complainant.

6.3

The Committee first considers that the complainant has not shown that the facts, as

presented by him, raise separate issues under articles 14 and 16 of the Convention.10 In the

absence of further explanations, the Committee considers that that aspect of the

communication is insufficiently substantiated.

6.4

The Committee then notes the complainant’s argument that the two new expert

opinions do not constitute new facts or evidence to support new allegations, but represent

additional evidence to support his original allegations of torture and ill-treatment. The

Committee considers that the complainant’s claims before the Committee are based on a set

of facts that were examined by the State party’s authorities and that have been sufficiently

substantiated for the purposes of admissibility.11 The Committee therefore finds that it is not

precluded from considering the article 3 claim under article 22 (5) (b) of the Convention.

6.5

Moreover, the Committee is of the view that, for the purposes of admissibility, the

complainant has provided sufficient information as regards the risk of irreparable harm that

he would allegedly face if he were returned to Sri Lanka and has therefore substantiated his

allegations under article 3 of the Convention. Accordingly, the Committee declares the claim

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

10 N.A.

v.

Switzerland

(CAT/C/79/D/1096/2021),

para.

8.3;

and

Harun

v.

Switzerland

(CAT/C/65/D/758/2016), para. 8.7.

11 A.Sh. et al. v. Switzerland (CAT/C/63/D/717/2015), paras. 8.3 and 8.4.

CAT/C/80/D/1106/2021

GE.24-13958

7

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

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

currently runs a risk of torture if returned to Sri Lanka.12

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.

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.13 The Committee also recalls that 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.14

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, acts of torture and ill-treatment because of his perceived connections

to the Liberation Tigers of Tamil Eelam, particularly given the human rights situation in

Sri Lanka, his Tamil ethnicity and his absence from the country. It also takes note of the

complainant’s assertions that he was detained, interrogated and ill-treated and that the Sri

Lankan authorities have, since then, been looking for him. In that 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 that 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 that 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 – including with

the help of the Embassy of Switzerland in Sri Lanka – the complainant’s allegations in

support of his request for asylum, but highlighted the inconsistencies therein and expressed

doubts as to their credibility.

7.7

Thus, the State Secretariat for Migration noted that the complainant had declared that

he was arrested in the presence of his parents, while his parents never declared that he was

arrested. Then the complainant declared before the State Secretariat for Migration that his

brother had been arrested two months after his escape and was never seen again, while his

parents declared to the Embassy of Switzerland that the complainant’s brother had

disappeared around eight or nine years ago. The complainant also mentioned that, while in

hospital, he had been visited on several occasions by Sri Lankan officers, while his parents

declared that, during his stay in hospital, no one had asked to see him. Lastly, the State

12 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.

13 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.

14 General comment No. 4 (2017), paras. 11, 39 and 50.

CAT/C/80/D/1106/2021

8

GE.24-13958

Secretariat for Migration noted that, according to the parents’ explanations, only the

complainant’s brother had contact with the Liberation Tigers of Tamil Eelam, whereas the

complainant had declared that his brother did not have any connection with the movement.

The Committee notes that the complainant has not provided a convincing explanation for

those discrepancies.

7.8

The Committee further notes that the Swiss authorities have not called into question

the allegation that the complainant may have suffered from violence in Sri Lanka and had

broken his forearms. They have, however, contested the credibility of his claims that his

activities with the Liberation Tigers of Tamil Eelam led to his persecution by the Sri Lankan

authorities and that the trauma he suffered had been caused by State agents. The Committee

notes that the complainant has not produced any evidence for his claims.

7.9

The Committee takes note of the two expert opinions delivered after the complainant’s

examination in accordance with the Istanbul Protocol. However, the Committee notes that

those reports – a physical examination and a psychological examination – were

commissioned by the complainant only after the Federal Administrative Court had denied his

appeal in the re-examination proceedings and were therefore not submitted to the authorities

of the State party during the asylum proceedings. The Committee also notes that, in the

ordinary proceedings, the complainant did not invoke any psychological problems and did

not produce any medical report. It was only in support of his extraordinary re-examination

proceedings that he produced a medical report attesting that he had started psychiatric

treatment almost two months after the final rejection of his asylum application. The

complainant does not explain why he chose to commission an examination in accordance

with the Istanbul Protocol after the final decision in his re-examination proceedings instead

of undergoing such an examination during the asylum proceedings, in order to use the report

in support of his allegations.

7.10

With respect to the argument relating to the worsening of 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 to provide the State Secretariat for Migration and the

Federal Administrative Court with supporting evidence and more information about his

claims during the asylum proceedings and his request for re-examination. However, it cannot

be concluded on the basis of the evidence provided that the complainant would personally be

at risk of facing torture or inhuman or degrading treatment if he returned to Sri Lanka. Even

if it were to accept the claim that the complainant was subjected to acts of torture and ill-

treatment in the past – as allegedly supported by his physical and psychological examination

in accordance with the Istanbul Protocol – the Committee recalls that the question is whether

he remains, at present, at risk of torture in Sri Lanka in the event of his forcible return there.15

The Committee also notes that, according to its jurisprudence, it is normally for the

complainant to present an arguable case.16

7.11

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.

In that sense, it notes that the complainant did not demonstrate before the Swiss asylum

authorities that the alleged violence he suffered was due to the intervention of State agents

or that the Sri Lankan authorities are currently searching for him. The complainant also did

not demonstrate that his family is currently persecuted due to his own past activities.

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.

15 N.K. v. Switzerland, para. 7.10.

16 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.

CAT/C/80/D/1106/2021

GE.24-13958

9

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 violation of article 3 of the

Convention by the State party.