CAT/C/81/D/1129/2022

GE.24-20458 (E) 191124 191124

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1129/2022*, **

Communication submitted by:

S.T. (represented by counsel, Florian Wick)

Alleged victim:

The complainant

State party:

Switzerland

Date of complaint:

15 April 2022 (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 2 June 2022 (not issued in

document form)

Date of adoption of decision:

1 November 2024

Subject matter:

Deportation to Sri Lanka

Procedural issues:

Non-exhaustion of domestic remedies;

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 S.T., a national of Sri Lanka born in 1997. 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 has made the declaration under article 22 (1) of the Convention,

effective from 2 December 1986. The complainant is represented by counsel.

1.2

On 2 June 2022, pursuant to rule 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. Three of his maternal uncles, who had been

active in the Liberation Tigers of Tamil Eelam (LTTE), died during the civil war, which

* 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/1129/2022

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

19 November 2024

Original: English

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ended in 2009.1 One of them had held a high-ranking position within the organization.2 A

friend of one of these uncles, K, was released from a rehabilitation centre in 2014 and moved

in with the complainant’s family. When he was still a minor, the complainant accompanied

K on various trips. He was not always aware of the purpose of the trips. During one of the

trips, while they were riding their motorcycles, they became aware that they were being

pursued by members of the Criminal Investigation Department. As a result of being followed,

they had an accident, at which point K was arrested by the officers, leaving the complainant

at the scene of the accident. His father picked him up and took him home to tend to his injuries.

2.2

On 6 January 2015, the complainant was arrested at his home by members of the

Criminal Investigation Department and taken to a detention camp nearby. He was detained

for more than two weeks, in a dark room, which had no bed or toilet. While in detention, the

complainant was beaten and frequently interrogated about K and LTTE, including with

regard to whether he had knowledge of where any weapons were stored. Repeatedly, the

complainant was stripped and severely beaten and kicked. On 21 January 2015, after the

payment of money by his parents, the complainant was released.

2.3

On 8 March 2015, members of the Criminal Investigation Department again came to

his home. At the time, the complainant was at his grandmother’s house. His mother called to

warn him about the search after the officers had left. An hour later, an uncle took the

complainant to his home to collect some belongings. He has not returned since. Given that,

on 8 March 2015, the officers had waited for him at his home for a long time, the complainant

decided in April 2015 to leave the country. His father organized for a facilitator to help the

complainant to leave the country on 14 July 2015.

2.4

The complainant arrived illegally in Switzerland on 24 November 2015 and filed his

application for asylum the following day. The State Secretariat for Migration interviewed

him on 30 November 2015 and 11 May 2017.

2.5

On 11 August 2017, the State Secretariat for Migration rejected the complainant’s

asylum application and ordered his return. It found the claims to be unsubstantiated because,

even though he had repeatedly been asked to give detailed and extensive accounts of his

arrest, detention and release, the complainant had consistently given only brief, repetitive

statements. The State Secretariat deemed the complainant’s submissions to be implausible

because he had initially stated that officers had simply decided to end his detention, while,

during the second interview, he had stated that he had found out after he had arrived in

Switzerland that his father had actually paid money for his release. The State Secretariat

doubted that his family had never discussed his release before his arrival in Switzerland. It

also doubted that the complainant would not have decided to leave his country until April

2015, as the trigger event – a search of his house by members of the Criminal Investigation

Department – had taken place on 8 March 2015. In addition, the complainant had not been

able to provide any information about how the search had taken place, what his parents had

been told or what he and his family had been asked to do. The complainant had also not been

able to explain the fact that officers had not started looking for him again until about one and

a half months after his release from detention.

2.6

The State Secretariat for Migration also identified some contradictions in the

complainant’s statements. For example, the complainant had initially said that he had been

taken away “again and again”, only to specify later that this had happened once. When asked

where he had been during the search on 8 March 2015, the complainant had first responded

that he had been with his mother’s uncle, but, at the second hearing, he had stated that he had

been with his grandmother, who had not been mentioned at any point in the first interview.

In addition, at the first interview, the complainant had stated that he had lived in his parents’

house until his departure on 14 July 2015, but, at the second hearing, he had mentioned that

he had not returned home after the search of 8 March 2015 and had stayed with his mother’s

uncle. Lastly, the complainant had stated at the initial interview that he did not know the

whereabouts of his brother, who had left in 2014, but, when asked at the second hearing why

1 No evidence was provided.

2 No further details were provided.

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he had a passport issued in 2014, the complainant had replied that he intended to visit his

brother in Thailand.

2.7

On 11 January 2019, the Federal Administrative Court dismissed the complainant’s

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

alleged detention and ill-treatment. The Court noted that the complainant – who was

represented by a lawyer who was experienced in asylum proceedings – had not explained the

risk posed by the profile of his three uncles. Their death certificates, produced in the appeal

proceedings, were deemed not to be capable of demonstrating their LTTE membership. In

any event, the Court noted that the State Secretariat for Migration had not questioned the

uncles’ and K’s LTTE membership but, rather, the claim that their LTTE membership had

led to the complainant’s persecution.

2.8

The Federal Administrative Court also considered that the complainant had not

clarified the nature of his political involvement while in exile in Switzerland, namely,

participation in demonstrations and taking photographs showing the flag of LTTE. The Court

analysed three photographs produced by the complainant, finding that he could be seen

standing several metres away from a group of people carrying two or three flags, which –

barely visible – could be those of LTTE. However, it was not clear from the photographs

where and when they had been taken. Moreover, in the photographs, contrary to his

allegations, the complainant did not appear to be standing in front of a flag; rather, he gave

the impression of only passing by.

2.9

On 14 June 2021, the complainant requested the State Secretariat for Migration to

review its decision of 11 August 2017. He produced a psychotherapy report issued by the

Family Help Association on 24 May 2021, which certified that he suffered from complex

post-traumatic stress disorder,3 recurrent depressive disorder, a risk of intentional self-harm

and a risk of developing an ongoing personality disorder. He also claimed that the Sri Lankan

authorities were still looking for him and produced a photograph recently taken of his father

with security officers. Lastly, he referred to the deteriorating political situation in Sri Lanka

since the 2019 presidential election.

2.10

On 9 July 2021, the State Secretariat for Migration rejected the complainant’s request

for reconsideration because the report reflected only his existing psychological problems due

to traumatic experiences, without determining the specific context of the trauma. The

complainant’s complex trauma was described in the report not as simple post-traumatic stress

disorder but as a trauma-related developmental and bonding disorder that had started in

childhood. Without denying the existence of his traumatic experiences and the psychological

stress associated with them, the State Secretariat considered that there were no concrete

indications to link the trauma to the complainant’s allegations or to any State persecution. As

for the photograph, insofar as it showed the complainant’s father, the State Secretariat

assumed that it simply showed him being questioned by the authorities. Lastly, the State

Secretariat expressed surprise that, following the judgment of the Federal Administrative

Court of 11 January 2019, the complainant had not sought medical help until 5 November

2020.

2.11

On 2 February 2023, the Federal Administrative Court rejected the complainant’s

appeal. The Court noted that the complainant had produced a new report, issued by the

Family Help Association on 3 August 2021, but considered that it did not provide any new

elements. In addition, the Court expressed doubt that his mental illnesses could be traced

back to the alleged imprisonment, as it was mentioned in the report that his trauma-related

developmental disorder had started in childhood. At the time of the alleged torture of 2015,

however, the complainant had no longer been a child. Nor could he derive anything in support

of his position from the undated photograph, which had been submitted with the request for

reconsideration. The photograph had no probative value, especially since it had not been

proven that the person depicted in it was actually the complainant’s father or when and in

what context the picture had been taken.

3 The diagnosis was of a post-traumatic stress reaction following sequential traumatization during

sensitive developmental phases in childhood and adolescence (developmental trauma disorder) with

dissociative symptoms.

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Complaint

3.1

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

of his rights under article 3 of the Convention.

3.2

The complainant considers that important evidence was either not considered at all or

not assessed correctly by the Swiss authorities, which in itself constitutes a violation of

article 3 of the Convention. He declares that, due to his extreme suffering from torture, and

thus as a consequence of torture, he was not in a psychological state to mention at his hearings

every detail. Following a successful experience of therapy, he was able to provide this

information in his request for reconsideration. However, the migration authorities did not

reproduce in detail all his statements. The complainant therefore considers that the question

of torture was not considered at all, which constitutes a serious omission.

3.3

The complainant disagrees with the conclusion of the State Secretariat for Migration

that his trauma could have occurred during his childhood. He refers to a new report issued

by the Family Help Association on 25 March 2022, in which it is mentioned that problems

in childhood might have been relevant, but only in the sense that they could amplify the

consequences of the torture inflicted. For the complainant, his post-traumatic stress disorder

was clearly not triggered during his childhood but was a result of the torture inflicted.

3.4

In conclusion, the complainant submits that all the documents produced demonstrate

that he runs a high risk of torture not only due to the enduring practice of gross, manifest and

massive violations of human rights in Sri Lanka4 but also due to the involvement of his

relatives in the internal conflict.

State party’s observations on admissibility and the merits

4.1

On 15 December 2022, the State party submitted its observations. It noted that, as the

appeal against the decision of 9 July 2021 of the State Secretariat for Migration was pending,

the complainant had not exhausted domestic remedies.

4.2

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 5 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 two landmark

judgments,6 according to which not all returnees with a real or supposed, present or past link

to LTTE 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 attracted

the attention of the Sri Lankan authorities.

4.3

The State party notes that it was only in his request for re-examination that the

complainant raised the allegations of torture and ill-treatment, but the State Secretariat for

Migration considered that the reports issued by the Family Help Association could not render

credible the complainant’s claim of persecution, which was found not to be credible in the

ordinary asylum procedure. As to the complainant’s trauma, the State party notes that it was

not disputed that he had experienced traumatic events and suffered from stress-related mental

disorders. However, it has not been credibly established that his disorders were a

consequence of torture suffered in Sri Lanka. The State party also notes that the

communication does not give any indication that the complainant would be considered a

threat to the State of Sri Lanka in the eyes of the regime.

4.4

The State party lastly notes that the domestic authorities did take into account the

allegations of torture and ill-treatment submitted by the complainant in the context of the

re-examination procedure. They referred explicitly to these allegations but concluded that

they were unsubstantiated.

4 See CAT/C/LKA/CO/5. See also A/HRC/49/9.

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

6 Federal Administrative Court, judgments E-1866/2015 of 15 July 2016 and D-3619/2016 of

16 October 2017.

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Complainant’s comments on the State party’s observations on admissibility and the

merits

5.1

In comments submitted on 29 March 2023, the complainant contests the State party’s

arguments. With regard to the State party’s plea of inadmissibility for non-exhaustion of

domestic remedies, the complainant submits that the State party referred to extraordinary

remedies but that the ordinary remedies had been exhausted. In any event, the debate is purely

theoretical because, in the meantime, the Federal Administrative Court has rejected his

request for re-examination.

5.2

The complainant contests the State party’s allegation that he did not raise the

allegation of torture in the ordinary proceedings. He declares that the Swiss authorities simply

did not examine his allegations of torture and that the word “torture” does not even appear in

their decisions.

5.3

As to the reports produced by the Family Help Association, the complainant points

out that, while it is stated in them that the sequential trauma started in childhood, it is also

mentioned that it was exacerbated by the torture that he had suffered and resulted in severe

health impairments. Moreover, it is explained in detail in those reports why the complainant

was not able to give an in-depth account of his torture. The torture is thus sufficiently

documented.

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 its observations

of 15 December 2022, the State party contested that the complainant had exhausted all

available domestic remedies because his request for re-examination was pending. However,

his request was dismissed by a final decision of 2 February 2023. In the light of this

information, the Committee considers that the State party’s plea of inadmissibility has

become moot and that it is not precluded from considering the communication under

article 22 (5) (b) of the Convention.

6.3

The Committee recalls that, for a claim to be admissible under article 22 of the

Convention and rule 113 (b) of its rules of procedure, it must rise to the basic level of

substantiation required for the purposes of admissibility.7 The Committee notes the State

party’s argument that the evidence produced has already been examined by the domestic

authorities. The Committee 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

was clearly arbitrary or amounted to a denial of justice.8 The Committee gives considerable

weight to findings of fact made by organs of the State party concerned;9 however, it is not

bound by such findings. It follows that the Committee will make a free assessment of the

7 See, inter alia, Z v. Denmark (CAT/C/55/D/555/2013), para. 6.3; and K.A. et al. v. Sweden

(CAT/C/39/D/308/2006), para. 7.2.

8 G.K. v. Switzerland (CAT/C/30/D/219/2002), para. 6.12; S.K. v. Australia (CAT/C/73/D/968/2019),

para. 12.5; and Z.S. v. Georgia (CAT/C/70/D/915/2019), para. 7.4.

9 For example, T.D. v. Switzerland (CAT/C/46/D/375/2009), para. 7.7; and Alp v. Denmark

(CAT/C/52/D/466/2011), para. 8.3.

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information available to it in accordance with article 22 (4) of the Convention, taking into

account all the circumstances relevant to each case.10

6.4

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 account were not credible, that he did not have a

political profile of interest to the Sri Lankan authorities and that the level of harm resulting

from his illegal departure from Sri Lanka would not amount to persecution. On that 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. The Committee also notes that the complainant contests the assessment

of his credibility made by the authorities of the State party. However, the Committee observes

that the complainant provided no documentation or other evidence to substantiate his

assertions 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, 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. Therefore, the Committee finds that the complainant has

not established that the domestic evaluation of the facts and evidence concerning his alleged

risk of treatment contrary to the Convention upon return to Sri Lanka suffered from any

defects.11

6.5

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. The Committee also recalls that, for a claim to be admissible under article 22 of the

Convention and rule 113 (b) of its rules of procedure, it must not be manifestly unfounded.

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.12

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 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.

11 S.K. v. Australia, para. 12.5.

12 Ibid., para. 12.6.