Inadmissibility 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.24-20437 (E)
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1084/2021*, **
Communication submitted by:
P.M. (represented by counsel, Sebastiaan van der
Werff)
Alleged victim:
The complainant
State party:
Switzerland
Date of complaint:
1 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 6 July 2021 (not issued in
document form)
Date of adoption of decision:
1 November 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)
Article of the Convention:
3
1.1
The complainant is P.M., a national of Sri Lanka born in 1991. 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 article 3 of the
Convention. The State party made the declaration under article 22 (1) of the Convention on
2 December 1986. The complainant is represented by counsel.
1.2
On 6 July 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.
Factual background
2.1
The complainant is of Tamil ethnicity. He left Sri Lanka by plane on 24 November
2015, with the passport he had obtained in 2012. On 18 January 2016, he arrived in
* Reissued for technical reasons on 2 January 2025.
** Adopted by the Committee at its eighty-first session (28 October–22 November 2024).
*** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu and Abderrazak Rouwane.
United Nations
CAT/C/81/D/1084/2021*
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
6 December 2024
English
Original: French
CAT/C/81/D/1084/2021
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GE.24-20437
Switzerland, where he applied for asylum. He was interviewed by the State Secretariat for
Migration on 25 January 2016 and 16 March 2018.
2.2
During the hearings, the complainant stated that he had sewn uniforms in the supply
department of the Liberation Tigers of Tamil Eelam from February 2007 until two months
before the end of the war in 2009. He claimed that his sister had been forcibly recruited by
the movement. On 10 July 2008, the complainant fled his village for another village, where
he underwent three days’ training with the Liberation Tigers of Tamil Eelam and
subsequently received a membership card. In April 2009, he returned to the area controlled
by the Sri Lankan army and, after being questioned by soldiers, was placed in a refugee camp,
where he completed his schooling. Later, he and his family returned to their native village.
His sister went through a government rehabilitation programme and, since then, has worked
as a kindergarten teacher.
2.3
At the hearing on 25 January 2016, the complainant explained that, when questioned
by soldiers, he had concealed his activities in the Liberation Tigers of Tamil Eelam. In 2012,
someone reportedly denounced him. Members of the army then questioned him at his home
and demanded that he go to the nearby military camp every Sunday to sign in. He complied
until his departure. The Criminal Investigation Department took him in and questioned him
several times. His sister was also frequently questioned by the same Department. The
complainant was beaten during the questioning. He was also arrested and harassed at work.
2.4
At the hearing on 16 March 2018, the complainant stated that he had been interrogated
by members of the army in 2013 and that he had worked briefly for the Liberation Tigers of
Tamil Eelam. According to the complainant, he therefore had to go to the military camp every
Sunday to sign in. On 9 April 2014, he was taken to the Criminal Investigation Department
and asked if he knew three people suspected by the authorities to be reviving the Liberation
Tigers of Tamil Eelam. The complainant was released on 12 April 2014, after the three people
in question were shot dead. After his release, he had problems almost every day. He was
stopped in the street and questioned about those three people. On 23 October 2015, his mother
filed a complaint with the Sri Lanka Human Rights Commission because the Criminal
Investigation Department had been coming to her home two or three times a month that year.
On 16 November 2015, the Criminal Investigation Department reportedly questioned the
complainant and his sister. He was told that his sister had stated that he had buried various
compromising items before his return to the army-controlled area: his Liberation Tigers of
Tamil Eelam membership card, photographs of his uncle and a brother-in-law, both members
of the movement, and photographs of his sister. After the recovery of these items, he was
detained in a military camp. He claimed that, during his detention and interrogation, he was
beaten and ill-treated. He was accused of having been his brother-in-law’s bodyguard.
According to the complainant, he was also tasked with identifying members of the Liberation
Tigers of Tamil Eelam. Through the intervention of a person with close ties to the Criminal
Investigation Department, and thanks to a cash payment, his mother obtained his release on
20 November 2015. On his release, he was informed that he must be ready to be questioned
and to identify members of the Liberation Tigers of Tamil Eelam; otherwise, he would be
killed.
2.5
On 27 April 2018, the State Secretariat for Migration rejected the complainant’s
asylum application and ordered his deportation from Switzerland. It noted that, at the hearing
on 25 January 2016, the complainant had not referred to key elements relating to the acts of
persecution, mentioning them only two years later, at the hearing on 16 March 2018. These
elements include the claims of arrest and torture, the reasons for the complainant’s arrest in
April 2014, his uncle and brother-in-law’s membership of the Liberation Tigers of Tamil
Eelam, the fact that his sister allegedly revealed to the Criminal Investigation Department
that he had hidden various items linking him to the movement prior to his return to the
army-controlled area, the reasons for and circumstances of his arrest in the military camp in
November 2015, and the order to assist in the identification of members of the Liberation
Tigers of Tamil Eelam. The State Secretariat thus found that claims not mentioned at the first
hearing to be implausible, particularly given that the complainant had twice explicitly stated
that he had not encountered any problems with the Sri Lankan authorities. The State
Secretariat also noted contradictions concerning the timing of the interrogations by army
members – 2012, as stated at the first hearing, or 2013, as stated at the second hearing – and
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concerning his activities for the Liberation Tigers of Tamil Eelam – the complainant stated
at the first hearing that he had sewn uniforms and looked for work, whereas, at the second
hearing, he stated that he had worked for the movement in order to avoid the forced
recruitment of his sister.
2.6
On 5 July 2019, the Federal Administrative Court dismissed the complainant’s appeal
since the discrepancies in his account – relating to his motives for joining the Liberation
Tigers of Tamil Eelam, the duration and extent of his activities for the movement, the arrests,
interrogations and ill-treatment to which he had been subjected and the obligation to report
to the military camp – rendered it implausible. Nor was it credible that the complainant had
joined the Liberation Tigers of Tamil Eelam thanks to his brother-in-law or that they had
buried various compromising items before the end of the war – including a photo of the
complainant with the brother-in-law in question, bearing arms and wearing Liberation Tigers
of Tamil Eelam uniforms, and the complainant’s membership card – which had allegedly
been discovered more than six years later, shortly before his departure. The Court also found
the large number of times on which he claimed to have been interrogated or stopped and
questioned by the Criminal Investigation Department in 2014 and 2015 to be unlikely.
2.7
The Federal Administrative Court then examined the various other pieces of evidence
submitted, including a police summons dated 11 January 2019,1 which it considered either
not relevant or not genuine. The Court accepted that the complainant had worked in the
supply department of the Liberation Tigers of Tamil Eelam and had helped to transport the
wounded, but it considered that he had not at any time been among the combatants. Other
than his sister, who had been a member of the Liberation Tigers of Tamil Eelam and had
gone through a rehabilitation programme after the end of the hostilities, the Court considered
that there was no family member of the complainant’s whose involvement in the Liberation
Tigers of Tamil Eelam as a combatant had been plausibly argued. Moreover, even if the
complainant had been taken in and questioned – three times over a period of three years –
that did not demonstrate persecution by the Sri Lankan authorities. With regard to the
possibility of return, the Court found that, after the end of the hostilities, the family had been
able to resettle quickly in their place of origin, that the complainant had worked as a postman
until his departure, that he had left the country by plane on his own passport and that, in
addition, while his sister had admittedly had to go through a rehabilitation programme, she
had then also been able to rejoin her family and had worked in a public kindergarten since
2013. Regarding the complainant’s state of health, the Court noted that, according to the
medical reports, his mental illnesses were mainly due to his general experiences as a result
of the hostilities and the difficulties of adapting to changing circumstances, but that
appropriate treatment would be available through the public health system in Sri Lanka.
2.8
On 19 August 2019, the complainant submitted an application for review,
accompanied by documents to support his allegations. On 17 September 2019, the State
Secretariat for Migration rejected the application, but on 11 December 2019, the Federal
Administrative Court overturned this decision and instructed the State Secretariat to
supplement the file, particularly with regard to the complainant’s state of health.
2.9
On 3April 2020, the State Secretariat for Migration rejected the complainant’s
application for review. It noted that the political changes in Sri Lanka, in particular the
November 2019 presidential election, had no bearing on the complainant’s situation and that
neither the letter from his mother, nor that from the president of a political party, contained
any elements to refute the conclusions reached by the State Secretariat and the Federal
Administrative Court during the asylum procedure. Moreover, the police summons had been
submitted and assessed during the asylum procedure. With regard to the deterioration in the
complainant’s state of health, the State Secretariat took as its starting point the findings of
the Court in its judgment of 5 July 2019. It noted that the family network in Sri Lanka was
stable and that, according to the most recent medical reports, the prospect of the
complainant’s continuing his medical treatment in his mother tongue should be considered a
favourable factor. Lastly, it referred to the possibility of tailored medical return assistance,
going beyond the provision of medication.
1 No further details provided.
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2.10
On 30 November 2020, the Federal Administrative Court rejected the complainant’s
appeal. It concluded that there was no evidence to suggest that the change of power in Sri
Lanka would create a risk of collective persecution for entire groups of the population. As
for the risks arising from the complainant’s state of health in the light of the various medical
reports, the Court noted that appropriate treatment options were available in Sri Lanka and
held that any suicidal tendencies could be managed as part of the preparations for his removal.
2.11
On 26 January 2021, the complainant submitted a second application for review
accompanied by a recent medical report – according to which he was suffering from complex
post-traumatic stress disorder and his state of health had deteriorated considerably since
December 2020 – and documents reportedly attesting to the persecution and ill-treatment of
his father by the Criminal Investigation Department, which was said to be seeking the
complainant. On 23 February 2021, the State Secretariat for Migration rejected the
application, noting that the claims that the complainant was being sought were very poorly
substantiated and above all general. The media reports on his father’s disappearance did not
appear convincing: one report was submitted in the form of a copied excerpt containing only
statements made by family members, while the reports posted online did not relate to the
complainant, but to other people. As for the complainant’s state of health, it had worsened
without, however, calling into question the conclusions reached in the previous proceedings.
2.12
In an interim ruling of 8 April 2021, the Federal Administrative Court noted that the
complainant had – for the first time – claimed to be involved in political activities in
Switzerland as a member of the Swiss Tamil Guard, having taken part in that organization’s
demonstrations since 2016. The Court concluded that these activities did not demonstrate that
the complainant’s profile was such as to make him a person of interest to the Sri Lankan
authorities. On 11 May 2021, the Court declared the complainant’s appeal inadmissible for
non-payment of procedural costs. In particular, it noted that the complainant’s state of health
had been the subject of in-depth analysis, notably in its judgment of 30 November 2020, and
that the latest medical reports of 19 January, 25 March and 20 April 2021 did not indicate
any change in the situation that would warrant the amendment of its conclusions.
2.13
Lastly, in the context of his complaint to the Committee, the complainant has
produced a medical report dated 8 June 2021 and another dated 18 January 2022, which attest
to the deterioration of his state of health owing to a marked suicide risk, as well as a
confirmation and documents and photographs concerning his political activities in
Switzerland.
Complaint
3.
The complainant claims that his deportation to Sri Lanka would constitute a violation
by the State party of his rights under article 3 of the Convention. He claims that he is at risk
of being subjected to torture. Moreover, given his state of health and the lack of access to
rehabilitation treatment for victims of torture in Sri Lanka,2 his deportation would constitute
inhuman and degrading treatment.3
State party’s observations on the merits
4.1
On 28 March 2022, the State party submitted its observations on the merits, reiterating
the arguments made by the Swiss asylum authorities. It acknowledges that the human rights
situation in Sri Lanka is worrying in many respects4 but points out that this situation and the
risk of being subjected to torture in the event of return were already thoroughly assessed by
the Federal Administrative Court in a landmark ruling.5 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 suspected of rekindling ethnic conflict face such
a risk. The same applies to Sri Lankan nationals who have engaged in political activities in
2 Swiss Refugee Council, “Sri Lanka: accès aux traitements de réhabilitation pour les victimes de la
torture”, 1 September 2020.
3 See Harun v. Switzerland (CAT/C/65/D/758/2016).
4 See CAT/C/LKA/CO/5.
5 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
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exile. In the present case, the complainant has failed to plausibly argue that he attracted the
attention of the Sri Lankan authorities.
4.2
The State party notes that the complainant left the country legally on his own passport,
that he carried out low-level auxiliary tasks in the Liberation Tigers of Tamil Eelam and that,
after the end of the hostilities, he worked for several years as a postman. His profile thus does
not suggest that he would attract the attention of his country’s security authorities in the event
of his return. Moreover, his sister, who was also a member of the Liberation Tigers of Tamil
Eelam, found a job in a public kindergarten after going through the rehabilitation programme
and has had no significant problems with the security authorities.
4.3
Furthermore, the complainant’s communication does not contain any information
demonstrating that, if he were returned to Sri Lanka, he could be considered a threat to the
State by the Sri Lankan authorities. Although it is true that the complainant is of Tamil
ethnicity and has lived abroad for an extended period, he has failed to demonstrate that he
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.
4.4
The State party points out that neither the State Secretariat for Migration, nor the
Federal Administrative Court, cast doubt on the conditions from which the complainant is
suffering. On the other hand, they considered that the complainant’s allegations that he had
been detained and tortured by the authorities of his country prior to his departure were not
credible. This assessment was based in particular on the fact that he did not mention these
events at the first hearing and that his account was flimsy and contained various
inconsistencies. Furthermore, the complainant failed to credibly argue that he was being
pursued by the Sri Lankan authorities at the time of his departure and was still being sought
following his flight. In addition, while the complainant entered Switzerland in January 2016,
he did not undergo psychological treatment until June 2018, that is, shortly after the State
Secretariat for Migration rejected his asylum application on 27 April 2018. The State party
therefore concludes that there is no evidence as to the causes of the mental disorders from
which the complainant is suffering.
4.5
The State party notes that, in his appeal of 26 March 2021, the complainant claimed
for the first time to have taken part regularly since 2016 in demonstrations organized by the
Swiss Tamil Guard. Surprisingly, these activities do not appear in the facts of the
communication before the Committee and are mentioned only briefly among the claims. The
evidence presented in support of these claims, in the annex to the said appeal and to the
supplementary information submitted on 26 January 2022, shows that the complainant was a
participant in the demonstrations with no particular role or commitments. The State party
deduces therefrom, as did the Federal Administrative Court, that these activities were not
such as to confer on the complainant any particular profile, but rather seem to have been
confined simply to participation in occasional pro-Tamil demonstrations.
4.6
In addition, there is nothing to suggest that the Sri Lankan security services had the
complainant in their sights prior to his departure for Switzerland. The Federal Administrative
Court considered that the complainant’s allegations that he had been detained and tortured
by the authorities of his country prior to his departure were not credible, for various reasons.
For example, the complainant had not mentioned these events at his first hearing, although
there is nothing to indicate that, owing to trauma or other factors, he would have been unable
to present his grounds for asylum and answer the questions put to him in a comprehensible
and circumstantial manner from the outset. The complainant’s account lacked substance and
contained several inconsistencies, and he was not able to credibly argue that he was being
pursued by the Sri Lankan authorities at the time of his departure and was still being sought
following his flight. In its judgment of 30 November 2020, the Court ruled on the claim that
the complainant’s father had been summoned and questioned by the authorities in Sri Lanka.
It found that the claim had been put forward very belatedly and was not sufficiently
substantiated. There is thus no reason to believe that there is a present and real risk that the
complainant would be subjected to torture if returned to Sri Lanka.
4.7
Lastly, the State party refers to the complainant’s state of health. First, it points out
that article 3 of the Convention is applicable only where there is a risk of torture as defined
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in article 1 in the event of removal, while the complainant explicitly invokes only degrading
and inhuman treatment from which no protection is afforded under article 3 of the Convention.
The claim of violation of this provision is therefore incompatible ratione materiae with the
provisions of the Convention. In the alternative, with regard to the complainant’s state of
health, the State party notes that the fact that the mental health treatment available in the
complainant’s country of origin or the country from which he arrived might not meet Swiss
standards is also not sufficient grounds for a stay of removal.
Complainant’s comments on the State party’s observations
5.1
On 15 June 2022, the complainant submitted his comments, in which he contests the
State party’s arguments and reiterates his allegations and claims. He explains that he did not
mention all the details during his first hearing because he was overwhelmed by the situation:
he had just arrived in a foreign country as a victim of torture and sexual violence. However,
he gradually opened up and was able to recount what he had suffered. The applicant notes
that, even if there are contradictions in his account, the medical reports clearly show that he
was subjected to torture, which is the cause of his mental disorders.
5.2
The complainant explains that, given his deteriorating state of health, he was placed
in a psychiatric centre in January 2022 and that he was to have a three-month hospital after
the month of August that year. Lastly, he produces a letter dated 30 May 2022 confirming
his active participation in the Swiss Tamil Coordinating Committee.
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 may not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State party has not contested the fact that the complainant has exhausted all available
domestic remedies, nor has it contested the admissibility of the complaint. The Committee
therefore finds that it is not precluded from considering the communication under
article 22 (5) (b) of the Convention.
6.3
The Committee notes that the complainant claims that the State party would violate
his rights under article 3 of the Convention by returning him to Sri Lanka. The Committee
recalls that, for a communication to be admissible under article 22 of the Convention and
rule 113 (b) of its rules of procedure, it must, inter alia, rise to the basic level of substantiation
required for purposes of admissibility.6 In cases involving refoulement, complainants must
present an arguable case by submitting substantiated arguments to demonstrate that the
danger of being subjected to torture upon removal is foreseeable, present, personal and real.7
In other words, they must establish a prima facie case by providing evidence that rises to the
basic level of substantiation to support their claims. 8 Extraterritorial claims relating to
article 16 of the Convention could fall within the scope of a State party’s non-refoulement
obligation under article 3 of the Convention if the ill-treatment that a person facing
deportation risks experiencing could likely change so as to constitute torture.9
6.4
The Committee further recalls that it is for the courts of the States parties to the
Convention, and not for the Committee, to evaluate the facts and evidence in a particular case,
unless it can be ascertained that the manner in which such facts and evidence were evaluated
6 For example, Y.H. v. Sweden (CAT/C/76/D/979/2020), para. 7.4.
7 Committee against Torture, general comment No. 4 (2017), para. 38.
8 S.S. v. Australia (CAT/C/74/D/935/2019), para. 7.6.
9 Committee against Torture, general comment No. 4 (2017), para. 16.
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was clearly arbitrary or amounted to a denial of justice.10 The Committee gives considerable
weight to findings of fact made by organs of the State party concerned;11 however, it is not
bound by such findings. It follows that the Committee will make a free assessment of the
information available to it in accordance with article 22 (4) of the Convention, taking into
account all the circumstances relevant to each case.12
6.5
In the present case, the Committee observes that the State party’s immigration and
judicial authorities thoroughly examined the facts and evidence presented by the complainant
and considered that some aspects of his story were not credible, that he did not have a political
profile of interest to the Sri Lankan authorities and that the state of his mental health – in
particular his post-traumatic stress disorder and suicidal tendencies – did not preclude his
removal to Sri Lanka, where he would have access to adequate medical care. On this basis,
the authorities concluded that the complainant had not established the existence of substantial
grounds to show that he would face a foreseeable, real and personal risk of being tortured if
returned to Sri Lanka.
6.6
The Committee also notes that the complainant contests the State party’s assessment
of his credibility and of the medical reports he produced. It observes, however, that the
complainant provided no evidence to substantiate his claims and that the authorities of the
State party found, after a thorough assessment of all the facts and evidence presented at
different levels of jurisdiction, including during the two review proceedings, that the
complainant had not provided sufficient evidence that he ran a foreseeable, real and personal
risk of being tortured if returned to Sri Lanka or that he would not have access to appropriate
health care. Therefore, the Committee finds that the communication does not establish that
the domestic evaluation of the facts and evidence concerning the complainant’s alleged risk
of treatment contrary to the Convention upon return to Sri Lanka suffered from any defects.13
6.7
The Committee recalls its earlier decisions in which it found claims to be manifestly
unfounded where the author of a communication failed to submit substantiated arguments
showing that the danger of being subjected to torture was foreseeable, present, personal and
real. In the light of the above, and in the absence of any further relevant information, the
Committee concludes that the complainant has failed to substantiate his claims sufficiently
for the purpose of admissibility.14
7.
The Committee therefore decides:
(a)
That the communication is inadmissible under article 22 (2) of the Convention;
(b)
That the present decision shall be communicated to the complainant and to the
State party.
10 G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; Z.S. v. Georgia (CAT/C/70/D/915/2019),
para. 7.4; and S.K. v. Australia (CAT/C/73/D/968/2019), para. 12.5.
11 For example, T.D. v. Switzerland (CAT/C/46/D/375/2009), para. 8.7; and Alp v. Denmark
(CAT/C/52/D/466/2011), para. 8.3.
12 For example, I.E. v. Switzerland (CAT/C/62/D/683/2015), para. 7.4. See also Committee against
Torture, general comment No. 4 (2017), para. 50.
13 S.K. v. Australia, para. 12.5.
14 Ibid., para. 12.6.