opencaselaw.ch

CAT/C/83/D/1131/2022

K.S. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2025-11-17 · 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.25-19041 (E) 090126 090126

Committee against Torture

Decision adopted by the Committee under article 22 of the

Convention, concerning communication No. 1131/2022*, **

Communication submitted by:

K.S. (represented by counsel, Didier Bottge)

Alleged victim:

The complainant

State Party:

Switzerland

Date of complaint:

23 May 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 8 June 2022 (not issued in

document form)

Date of adoption of decision:

17 November 2025

Subject matter:

Deportation to Togo

Procedural issue:

Exhaustion of domestic remedies

Substantive issue:

Risk of torture or other cruel, inhuman or

degrading treatment or punishment if deported to

country of origin (non-refoulement)

Articles of the Convention:

3, 14 and 16

1.1

The complainant is K.S., a national of Togo born in 1985. He applied for asylum in

Switzerland, but his application was rejected. He is facing removal to Togo and claims that

his removal would constitute a violation by the State Party of articles 3, 14 and 16 of the

Convention. The State Party made the declaration provided for in article 22 (1) of the

Convention on 2 December 1986. The complainant is represented by counsel.

1.2

On 8 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 Togo while his complaint was being considered.

1.3

On 14 June 2022, the State Party informed the Committee that, in accordance with its

established procedure, the State Secretariat for Migration had requested the competent

authority to refrain from taking any steps to deport the complainant, who was therefore

assured of remaining in Switzerland pending the consideration of his complaint by the

Committee.

* Adopted by the Committee at its eighty-third session (10–28 November 2025).

** The following members of the Committee participated in the examination of the communication:

Todd Buchwald, Jorge Contesse Singh, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu

Huawen, Maeda Naoko, Ana Racu and Abderrazak Rouwane.

United Nations

CAT/C/83/D/1131/2022

Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment

Distr.: General

31 December 2025

English

Original: French

CAT/C/83/D/1131/2022

2

GE.25-19041

Factual background

2.1

In 2012, the complainant trained as an offshore petroleum engineer in Gabon and

worked for two months on a drilling platform in Togo. However, his work came to an end

when the Togolese authorities refused to issue a seaman’s book to the members of his team.

Following this refusal, one of his colleagues complained to the press and revealed the

existence of oil and gas deposits that had been kept secret by the Government of Togo. These

revelations led to acts of repression committed by the Togolese authorities against the

complainant and his family. In January 2013, fires broke out at major markets in Lomé and

Kara. The complainant, a member of the organization Nouveaux droits de l’homme (New

Human Rights) since 2010, was appointed to investigate the people who had allegedly started

the fires, in order to clear their names. In the course of his investigations, in July and August

2014, he tried unsuccessfully to interview the chief of the gendarmerie in Lomé, and on

11 September 2014, he met with an opposition leader who reportedly promised to put him in

touch with people who would be able to shed light on the oil affair.1

2.2

The complainant was abducted from his home by three unknown persons on

13 September 2014 and was held at an unknown location from 13 to 29 September 2014. On

29 September 2014, a man who claimed to be acting on the orders of one of the brothers of

the President of the Republic came to free him. The man took him to Ghana, where he

remained until 20 October, when he returned to Togo. He stayed in Togo before flying to

Hamburg, Germany, on 3 November 2014. The complainant had obtained a Schengen visa

beforehand from the Embassy of Germany in Togo by using a false marriage certificate to

pose as the husband of a woman with whom he then travelled. On 7 November 2014, he

arrived in Switzerland. He knew no one in Switzerland and ended up staying for six and a

half months with a man who tried to take advantage of him.2 The complainant applied for

asylum in Switzerland on 22 May 2015.

2.3

The State Secretariat for Migration interviewed the complainant on 15 June 2015. On

22 September 2015, the State Secretariat informed him that the procedure opened under

Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June

2013 establishing the criteria and mechanisms for determining the member State responsible

for examining an application for international protection lodged in one of the member States

by a third-country national or a stateless person (the Dublin III Regulation) had been closed,

as Germany was no longer competent because the visa issued by its authorities had expired

more than six months previously. In March 2016, the complainant was taken to hospital by

the police following a suicide attempt. On 17 May 2016, the complainant was interviewed

by the State Secretariat in depth about his reasons for seeking asylum.

2.4

On 20 May 2016, the State Secretariat for Migration rejected the complainant’s

asylum application and ordered his return. It considered the complainant’s account of the

circumstances of his abduction to be implausible. When asked during his second interview

to describe his abduction, the complainant had given what sounded like a rehearsed response,

repeating almost word for word what he had said at his first interview. The State Secretariat

found it striking that, at that point, the complainant had been unable to give any details of the

events he claimed to have experienced. This was taken as a further indication that the alleged

abduction was a story made up to support his application. The State Secretariat further noted

that, when asked to elaborate on his statements, the complainant had been unable, for

example, to describe his kidnappers in any way, saying only that they were strong, and had

given similarly brief responses when asked to describe the moment when he got out of the

car, the warehouse where he had been detained and his release.

2.5

The State Secretariat for Migration found it hard to believe the complainant’s claim

that the brother of the President of the Republic was behind his release. The complainant had

been unable to explain how the President’s brother had learned of his abduction and why he

had acted in the way that he did. The State Secretariat noted that it made little sense that the

complainant had not had to pay any travel expenses and that he had been helped by a stranger

1 A report published on 30 November 2017 by the Association togolaise des droits de l’homme

(Togolese Human Rights Association) mentions the disappearance of all the sailors who had been

working on the platform.

2 No details provided.

CAT/C/83/D/1131/2022

GE.25-19041

3

to leave the country. The State Secretariat also expressed surprise that the complainant, who

claimed to have felt threatened in his home country, had not applied for asylum directly in

Germany and had not applied for asylum in Switzerland until six months after his arrival.

This attitude is all the more puzzling as the complainant is an educated man and must have

been aware of the protection available in Switzerland when he arrived in the country.

Moreover, the notion that he left his passport with someone he met by chance at a railway

station seems to go against what any sensible person would do in the same situation, given

the importance of such a document.

2.6

Lastly, the State Secretariat for Migration noted that the complainant had made

contradictory statements about his last address in Togo. As for the evidence submitted, it did

not demonstrate that the complainant was afraid of being persecuted in Togo.

2.7

On 2 June 2016, the complainant appealed against the decision of the State Secretariat

for Migration. He stated that he had joined the human rights association in 2010 and had

regularly taken part in opposition marches and meetings of the ruling party. He stated that he

had not sought protection immediately upon arrival in Switzerland because he had put his

trust in the process that he had been told to follow by the person he had met. The complainant

added that he had health problems that prevented him from being returned to Togo. On 7 July

2016, the complainant submitted a medical report stating that he had been hospitalized from

6 to 8 March 2016 for his own protection after making plans to commit suicide during a

moderate depressive episode. The complainant then refused to take medication.

2.8

On 7 August 2017, the Federal Administrative Court dismissed the complainant’s

appeal, ruling that his claims concerning the reasons for his abduction and the circumstances

of his detention were implausible. It was not credible that his captors had not spoken to him

during the two weeks that he was detained or made any demands. Furthermore, the

complainant had been unable to explain how he would be at risk in Togo, since the President’s

brother had intervened on his behalf. The Court also noted that, generally speaking, the

complainant’s account lacked substance, and it did not seem plausible that he had been so

lucky as to have fortuitously made the acquaintance of several people who had come to his

aid for no reason and had generously financed his exile: a complete stranger had supposedly

freed him from detention, had him sign a forged marriage certificate, obtained a visa for him

and fully financed his journey to Switzerland, for no particular reason. Another person had

supposedly provided him with food and lodging in Germany for around a week, without

receiving anything in return, and had even given him money on his departure that had covered

the cost of a train ticket to Switzerland. A third stranger had supposedly provided him with

board and lodging in Switzerland for several months. Lastly, the Court found that the fact

that the complainant had not been put on medication when he left the psychiatric hospital

showed that his case was not a very serious one, and that the complainant had failed to

demonstrate that he faced a personal, real, concrete and serious risk of being subjected to

torture or inhuman or degrading treatment if he were to be returned to his country.

2.9

On 25 September 2017, the complainant filed an initial application for his case to be

re-examined by the State Secretariat for Migration on the grounds that his state of health had

deteriorated.3 On 26 October 2017, the State Secretariat rejected the application, arguing that

the complainant’s mental health problems could not be considered acute on the basis of the

medical certificate provided, which referred to a worsening of his state of health without

giving further details. The complainant did not appeal against this decision, which has now

become final.

2.10

On 15 January 2018, the complainant submitted a second application for his case to

be re-examined on the grounds that his mental health had deteriorated. The complainant

asserted that his obvious depression and his suicidal thoughts were the result of the removal

order handed down by the Federal Administrative Court. The complainant also provided

some new information: according to an investigation report by the Association togolaise des

droits de l’homme dated 30 November 2017, five officers had gone to his former partner’s

home in Togo to force her to reveal where he was living. Threats had been made, and his

former partner and their daughter had been forced to flee to Benin. On 25 January 2018, the

3 The complainant provided a medical certificate dated 12 September 2017.

CAT/C/83/D/1131/2022

4

GE.25-19041

State Secretariat for Migration rejected the complainant’s application on the grounds that his

state of health had not changed since 26 October 2017 and that the investigation report did

not contain any new information – it had been drawn up on the basis of statements by third

parties and therefore could not be used to establish the existence of a well-founded fear of

persecution. On 7 June 2018, the complainant filed an appeal with the Federal Administrative

Court, which was declared inadmissible on 13 June 2018 on the grounds that it had been filed

too late.

2.11

On 20 September 2018, the complainant filed a second application for asylum, citing,

firstly, the fact that his family had received threats since the publication of two articles telling

his story in the Togolese media, and, secondly, the fact that the other people who had been

working on the oil rig were allegedly wanted by the Togolese authorities for having disclosed

information about the presence of oil and gas deposits off the coast of Togo, as proved by the

statement of a former colleague who had sought refuge China. On 6 November 2018, the

State Secretariat for Migration rejected this application and ordered the complainant’s

removal and the enforcement of the removal order. The State Secretariat considered that the

complainant had not proved that he had a well-founded fear of persecution in the event of his

return to his country of origin. The State Secretariat was of the view that the evidence

submitted in support of his second asylum application had no probative value, as it did not

lend his story greater credibility. The State Secretariat pointed out that it was well known that

it was possible to have fake articles published in the Togolese press in exchange for payment.

2.12

On 23 January 2019, the Federal Administrative Court rejected the complainant’s

appeal. It ruled that the testimonies presented were not credible and confirmed that it was

possible to have fake articles published in Togo.4 Moreover, the newspaper articles merely

related statements that the Court had found implausible in its 7 August 2017 ruling and were

therefore irrelevant. The Court did not rule out the possibility that the extracts provided had

been falsified: the font and font size used in one of the two articles recounting the

complainant’s alleged story differed from those used in the other articles on the same page,

and one of the newspapers was dated Friday, 3 August 2018, even though the newspaper was

a weekly that came out on Thursdays. Lastly, the Court noted that the complainant had made

no further reference to any health problems.

2.13

On 2 March 2019, the complainant filed an application for his case to be re-examined

on medical grounds, submitting medical certificates dated 6 March 2016. On 8 March 2019,

he filed a third asylum application. He pointed to the arrest, on 3 March 2019, of his brother,

who had also worked on oil rigs, had escaped an attempted kidnapping and had been accused

by the Togolese authorities of revealing secret information about the oil platform to the press.

The complainant also claimed that his former partner had been abducted by the police, who

had asked her where the complainant was. The complainant also informed the State

Secretariat for Migration that criminal investigation officers had visited his home to deliver

a summons against him. On 19 March 2019, the State Secretariat suspended the

complainant’s removal.

2.14

On 3 April 2019, the State Secretariat for Migration rejected the complainant’s asylum

application. It noted that the complainant had not provided any detailed information about

his brother’s arrest, regarding either the date of arrest or the place of detention, even though

he had mentioned that his uncle had found his brother and knew the reasons for his arrest. In

addition, the photographs of the alleged arrest of his former partner proved neither the

identity of the person nor the reasons for the arrest. Lastly, the State Secretariat could not

understand why the Directorate General of Police would have issued a summons for

25 March 2019, when the complainant had been in Switzerland since 2015. Moreover, the

document submitted was only a copy of the summons and therefore had no probative value.

2.15

On 27 April 2021, the Federal Administrative Court rejected the complainant’s

appeal. It noted, in particular, that during the hearings that were held as part of the initial

asylum procedure, the complainant had never mentioned that his brother had worked on the

same drilling platform as him in 2012. The Court also examined the form and content of the

4 The Court refers to two reports published by non-governmental organizations in 2016 and 2017.

CAT/C/83/D/1131/2022

GE.25-19041

5

additional summonses 5 submitted by the complainant and concluded that they did not

corroborate his claims that he was wanted by the Togolese authorities. Firstly, the fields

provided for the acknowledgement of receipt had not been completed or detached, raising

the question of how the complainant’s relatives had come into possession of the summonses.

Secondly, the documents did not indicate the purpose of the summons, the applicable legal

provision or the penalty for refusing to appear. Moreover, since the documents had been

issued more than four years after he had left the country and more than six years after he had

stopped working as a petroleum engineer on an offshore drilling platform, it had by no means

been established that they were directly and temporally linked to that work. If the Togolese

authorities really were searching for the complainant in a targeted manner in order to arrest

him as part of a State plot to neutralize certain people who were in possession of information

about the clandestine extraction and sale of oil, it made little sense that they would have

waited until March and April 2019 to merely summon the complainant and to attack his

relatives.

2.16

Regarding the complainant’s state of health, the Court noted that although he had

referred to a worsening of his psychological symptoms in his letter of 2 March 2019 and to

suicidal thoughts during the proceedings, he had not submitted any medical documents to

substantiate his claims. In any event, the complainant would be able to receive psychiatric

treatment in Togo if necessary.

2.17

A hospital discharge letter dated 16 June 2021 states that the complainant was

hospitalized in the psychiatric ward from 11 May to 4 June 2021 for protection from suicidal

thoughts. On 8 September 2021, the complainant submitted to the cantonal authority an

application for regularization, which was rejected on 14 April 2022.

2.18

On 13 September 2021, the complainant filed a third application for his case to be

re-examined by the State Secretariat for Migration. To support his request, he referred to an

article published in the newspaper Liberté on 6 July 2021 entitled “Le Trésor français révèle

que le Togo exporte du pétrole raffiné” (The French Treasury reveals that Togo exports

refined petroleum). He claimed that the Banque de France had published erroneous data on

petroleum sales by Togo and noted that the article of 6 July 2021 mentioned figures reported

by the French Treasury. The complainant also stated that he was in possession of video

testimony in which a former colleague recounted everything that he had lived through before

seeking refuge in China.6 In addition, he argued that his story was identical to that of an

Ethiopian national who had been granted refugee status in Italy because she had received

threats from the Ethiopian authorities after opposing the acquisition of farmland by

multinationals. The complainant also stated that he had been living in Switzerland for almost

seven years and that he was requesting temporary admission on the grounds that he was well

integrated in the country.

2.19

On 27 September 2021, the State Secretariat for Migration dismissed the application

for re-examination. It found that the formal procedural requirements had not been met, since

the application was based on a newspaper article dated 6 July 2021 and contained no

statement of reasons relating to compliance with the 30-day time limit, established by the

Asylum Act, for the submission of such an application. The State Secretariat also noted that

the newspaper article was not decisive evidence supporting the complainant’s application,

since it had not been shown to be directly linked to the complainant’s specific, individual

situation. The State Secretariat reached the same conclusion with regard to the complainant’s

claims concerning the testimony of a former colleague and the situation of an Ethiopian

national. It also noted that, as a matter of principle, a decision could not be reviewed or

re-examined if the sole aim was to obtain a new legal assessment of facts already known or

a new evaluation of a settled legal matter. The complainant did not appeal against this

decision.

5 Issued by the Central Directorate of the Criminal Investigation Service on 25 March, 2 April and

10 April 2019.

6 The complainant did not produce the video testimony to support his application.

CAT/C/83/D/1131/2022

6

GE.25-19041

Complaint

3.1

The complainant asserts that his deportation to Togo would constitute a violation of

his rights under articles 3, 14 and 16 of the Convention because he would be at risk of

deprivation of liberty and inhuman and degrading treatment. He adds that Togolese prisons

do not meet international standards and that he would inevitably suffer ill-treatment there that

would cause him irreparable harm.

3.2

The complainant argues that the authorities of the State Party failed to take into

account his specific medical needs when they upheld their decision to return him to Togo.

He stresses that he has been hospitalized twice, in March 2016 and May 2021, for attempting

suicide and that he has suicidal thoughts on a daily basis. He believes that the Swiss

authorities failed to carry out a sufficient, individualized assessment of his case and his

personal experience as a victim of abduction, taking into account that his former partner and

his brother have been threatened and arrested by the Togolese authorities, that he himself

would be persecuted by the Togolese authorities if he were returned to Togo and that all the

people he worked with on the oil platform have either been arrested or fled. He considers that

he would not have access to adequate medical care in Togo.

State Party’s observations on admissibility and the merits

4.1

On 29 November 2022, the State Party submitted its observations. It notes that the

complainant provided the Committee with a hospital discharge letter dated 16 June 2021 that

he had not submitted to the asylum authorities when applying for his case to be re-examined

on 13 September 2021. Consequently, the State Party considers that the complainant has not

exhausted all domestic remedies, since he could have used this evidence to support an

application for the re-examination of his case, bearing in mind that he filed an application of

that kind on 13 September 2021, in which there was no mention of the fact that he had been

hospitalized from 11 May to 4 June 2021.

4.2

With regard to the merits, the State Party reiterates the arguments presented by the

Swiss asylum authorities. It points out that, although there are outbreaks of violence and

further unrest cannot be ruled out, Togo is not in a situation of war, civil war or widespread

violence. It notes that the complainant does not claim to have been subjected to torture or

ill-treatment in the past.

4.3

The State Party notes that the domestic authorities found the complainant’s claims

that he was at risk of persecution by the Togolese authorities implausible. It is also surprising

that the complainant made no reference to his mental health problems in his application for

re-examination of 13 September 2021, despite having emphasized that aspect several times,

including in his appeal of 2 June 2016, his applications for re-examination of 20 May 2016

and 15 January 2018 and his asylum application of 8 March 2019. Furthermore, the fact that

the complainant was hospitalized in a psychiatric ward in May 2021 because of suicidal

thoughts linked to the prospect of being forcibly returned to his country of origin does not

cast doubt on the soundness of the decisions of the State Secretariat for Migration and the

Federal Administrative Court.

4.4

Lastly, if the complainant’s state of mental health were to render him unable to cope

with the stress and anxiety of his removal to Togo and even put him at risk of harming himself

or others, it would be up to the authorities responsible for enforcing the removal order to

arrange for him to be accompanied by a person with medical skills or any other person

capable of providing him with appropriate support, based on the outcomes of the medical

examination conducted prior to departure.

Complainant’s comments on the State Party’s observations

5.1

On 20 February 2023, the complainant submitted his comments. Regarding the State

Party’s claim that his complaint is inadmissible because he had not informed the asylum

authorities of his hospitalization from 11 May to 4 June 2021, the complainant argues that,

since he has had no legal training, non-compliance with procedural requirements of that kind

cannot be held against him, as the complainant is to be treated with a degree of leniency by

the authorities and courts, and the information in question should be examined by the

CAT/C/83/D/1131/2022

GE.25-19041

7

Committee. Otherwise, the Committee runs the risk of accepting requirements that constitute

excessive formalism.

5.2

With reference to the human rights situation in Togo, the complainant argues that the

torture and ill-treatment he suffered following his abduction and the reprisals taken against

his relatives to intimidate him are sufficient indications that he faces a personal risk of being

subjected to torture again if he is returned to Togo. According to the complainant, despite the

progress made by the Government of Togo, there is still a consistent pattern of gross, flagrant

or mass violations of human rights, relating to press freedom, corruption and torture in

particular, in the country.

5.3

The complainant states that the circumstances of his abduction suggest that it was

organized by a public official either because of his investigation into the fires at the major

markets in Lomé and Kara, or because of his work on the oil platform. The complainant was

tortured by the Togolese authorities in the recent past, as evidenced by medical certificates

and statements from relatives who have also been abducted. These events left their mark, as

the complainant has since been hospitalized twice for suicidal thoughts and depression.

5.4

The complainant argues that he was actively involved in political and humanitarian

activities as he was a member of the organization Nouveaux droits de l’homme. In addition,

he has been persecuted in connection with his former work as a petroleum engineer on a

drilling platform, because the Togolese authorities were displeased that one of his former

colleagues had revealed the existence of oil deposits. Since all the people who were working

on the drilling platform have had to flee or have been arrested, there is no doubt that the

complainant will be arrested on his return to Togo and that he will be tortured again, as he

was when he was abducted for 17 days.

5.5

The complainant notes that he has tried hard to prove his claims by providing

photographs of his former partner bed-bound after being attacked and a statement recounting

the attack, as well as photographs relating to the arrests of his brother and his former partner,

statements from former colleagues who had been threatened with abduction and torture, and

press articles about the oil affair and the threats made in that context. The complainant finds

it hard to understand what other evidence he could have presented in this situation and

considers that the Swiss authorities were far too quick to reject all the evidence that he

provided, without examining its veracity. He also disputes the Swiss authorities’ findings

regarding alleged inconsistencies in his account.

5.6

With regard to his state of health, the complainant claims that he would not be able to

afford treatment in Togo and that his family would not be able to help him cover the cost. In

Togo, there is no financial support from the State and medicines are a major financial burden

for patients’ families, who often resort to traditional methods for lack of means. Moreover,

medicines are not always available, as the supply is unreliable. Even if the situation were to

change, the progress made by Togo thus far in the area of psychiatric treatment is not

sufficient to ensure that he would receive adequate and appropriate care. He would therefore

face discrimination because he is poor. The situation as regards the provision of medical care

is even worse in prisons.

State Party’s additional observations

6.1

On 5 October 2023, the State Party noted that, contrary to his assertions, the

complainant would have access to essential mental healthcare in Togo. According to the case

law of the Federal Administrative Court, the medical facilities available are sufficient,

particularly in Lomé, the complainant’s home town, which has public psychiatric facilities

that could provide him with appropriate care if need be, including Sylvanus Olympio

University Hospital, Campus University Hospital and Barruet Clinic.7 In February 2017,

7 Federal Administrative Court, Judgment E-7281/2018, 19 December 2019, para. 7.2.3; Judgment

D-1601/2018, 3 May 2018, para. 8.5; and Judgment E-3520/2016, 7 August 2017, para. 7.3.3.

CAT/C/83/D/1131/2022

8

GE.25-19041

Lomé Mental Health Centre opened a centre for the diagnosis of psychiatric disorders that

has provided services to more than 5,000 patients.8

6.2

As regards the medication prescribed to the complainant, the State Party notes that,

according to the information available, quetiapine is available in Lomé.9 While the State

Party cannot guarantee that venlafaxine is available in Lomé, the Federal Administrative

Court has noted in a judgment that, according to the Consulate General of Switzerland in

Lomé, it is possible to obtain antidepressants there. 10 The complainant can also request

individual return assistance from the State Secretariat for Migration. In that context, if

appropriate, he could be granted a supply of medicines to take with him or even financial

support to help cover the cost of the necessary medical care in Togo for a limited time

period.11

6.3

Regarding the claim that the complainant could face discrimination and would have

no access to healthcare, the State Party notes that this is a mere assertion that is not based on

any concrete evidence and is completely unsubstantiated. Moreover, there is no evidence in

the case file to suggest that the complainant’s profile might prevent him from gaining access

to the necessary medical care, since, according to his statements, he is still young and has a

high school diploma, as well as professional experience as a petroleum engineer, a seller of

computer hardware and a dishwasher in a restaurant.

Issues and proceedings before the Committee

Consideration of admissibility

7.1

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.

7.2

The Committee notes that the State Party argues that the complainant has not

exhausted all available domestic remedies because he did not apply for his case to be

re-examined to enable the competent national authorities to evaluate the hospital discharge

letter dated 16 June 2021 that he attached to his complaint to the Committee. The Committee

notes that the complainant invokes a lack of procedural knowledge. The Committee notes,

however, that the complainant had already mentioned his medical situation on several

occasions during the domestic proceedings. The Committee considers that the hospital

discharge letter in question does not constitute a new fact or evidence produced to support

new claims but rather additional evidence for his claims regarding his state of health. The

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

of facts that were examined by the authorities of the State Party and that have been

sufficiently substantiated for the purposes of admissibility.12 The Committee therefore finds

that, as far as the hospital discharge letter dated 16 June 2021 is concerned, it is not precluded,

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

7.3

The Committee 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.13 In the

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

communication has not been sufficiently substantiated.

8 Swiss Refugee Council, “Togo : protection et soins psychiatriques pour les victimes de la traite des

êtres humains” (Togo: protection and psychiatric care for victims of trafficking in persons),

15 October 2018, p. 7.

9 Belgium, Aliens Litigation Council, Judgment No. 289 033, 16 May 2023, case X/1, para. 3.2.

10 Federal Administrative Court, Judgment E-4893/2019, E-4897/2019, 29 March 2022, para. 4.3.

11 Asylum Act, art. 93 (1) (d); and Asylum Ordinance No. 2 of 11 August 1999 on Financial Matters,

art. 75.

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

13 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.

CAT/C/83/D/1131/2022

GE.25-19041

9

7.4

In the absence of any other obstacle to the admissibility of the communication, the

Committee proceeds to its consideration of the merits of the claims submitted by the

complainant under article 3 of the Convention.

Consideration of the merits

8.1

The Committee has considered the communication in the light of all the information

made available to it by the parties, in accordance with article 22 (4) of the Convention.

8.2

In the present case, the issue before the Committee is whether the removal of the

complainant to Togo would constitute a violation of the State Party’s obligation under

article 3 of the Convention not to expel or to return 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.

8.3

The Committee must evaluate whether there are substantial grounds for believing that

the complainant would be personally in danger of being subjected to torture if returned to

Togo. 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 an analysis is to determine whether the complainant runs a foreseeable, personal,

present and real risk of being subjected to torture in the country to which he 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 grounds 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 Togo.14

8.4

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.15 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.16

8.5

In the present case, the Committee notes the complainant’s claim that he would be in

danger of being subjected to treatment contrary to article 3 of the Convention if returned to

Togo, as he would be at risk of detention and inhuman and degrading treatment on account

of his work on a drilling platform in Togo, particularly given the human rights situation in

Togo. The Committee also notes that the complainant does not claim to have suffered torture

or ill-treatment in the past.

8.6

The Committee notes the contradictions that the asylum authorities of the State Party

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 Togolese authorities. The

Committee notes that the Swiss authorities duly examined the complainant’s claims and the

evidence produced to support his asylum application but found inconsistencies therein and

expressed doubts as to their credibility.

8.7

In particular, the Committee notes that the Swiss authorities did not cast doubt on the

credibility of the complainant’s claims relating to his work on the drilling platform. They

argued, however, that the complainant’s claim that this work had led to his being abducted

for two weeks and persecuted by the Togolese authorities was not credible. The Swiss

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

15 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.

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

CAT/C/83/D/1131/2022

10

GE.25-19041

authorities also expressed doubts as to whether the alleged abduction even took place and

whether the complainant’s account of the events leading up to his arrival in Switzerland was

accurate.

8.8

The Committee notes that even if it were to accept the claim that the complainant was

subjected to acts of torture and ill-treatment in the past (a claim that has not, in fact, been

made in the present case), the question is whether he remains, at present, at risk of torture in

Togo in the event of his forcible return there.17 The Committee also notes that, according to

its jurisprudence, the onus is generally on the complainant to make an arguable case.18 In the

present case, the Committee is of the view that the complainant has not provided credible

information suggesting that the Togolese authorities are currently interested in him. The

complainant also has not demonstrated that his family is currently being persecuted because

of his own past activities. In this regard, the Committee notes the Swiss authorities’

arguments for rejecting the evidence produced by the complainant, such as press articles,

summonses and photographs.

8.9

With respect to the complainant’s argument relating to the human rights situation in

Togo, 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, as he submitted three asylum applications and three applications for re-examination.

However, it cannot be concluded on the basis of the evidence provided that the complainant

would personally be at risk of torture or inhuman or degrading treatment if he returned to

Togo.

9.

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 foreseeable, personal,

present and real risk of being subjected to treatment contrary to article 3 of the Convention.

10.

The Committee, acting under article 22 (7) of the Convention, concludes that the

return of the complainant to Togo would not constitute a breach of article 3 of the Convention

by the State Party.

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

18 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.