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.25-21031 (E) 190126 200126
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1153/2022*, **
Communication submitted by:
V.K. (represented by counsel, Stephanie Motz)
Alleged victim:
The complainant
State Party:
Switzerland
Date of complaint:
29 August 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 5 September 2022 (not
issued in document form)
Date of adoption of decision:
21 November 2025
Subject matter:
Deportation to Sri Lanka
Procedural issues:
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)
Articles of the Convention:
3, 14 and 16
1.1
The complainant is V.K., a national of Sri Lanka born in 1987. He applied for asylum
in Switzerland, but his application was rejected. He is facing deportation to Sri Lanka and
submits that his deportation would constitute a violation by the State Party of articles 3, 141
and 16 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 5 September 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 while the communication was being considered.
* 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, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen,
Maeda Naoko, Ana Racu, Abderrazak Rouwane and Bakhtiyar Tuzmukhamedov.
1 The complainant did not mention an express violation of article 14 in his communication. After the
State Party mentioned article 14 in its observations and asked the Committee to declare the relevant
claim inadmissible, the complainant alleged a violation of that article in his comments of 29 March
2024.
United Nations
CAT/C/83/D/1153/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
8 January 2026
English
Original: French
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Factual background
2.1
The complainant is of Tamil ethnicity. He has three sisters and five half-siblings from
his father’s marriages to his mother and her sister. In 2002, one of his half-brothers, R., joined
the Liberation Tigers of Tamil Eelam. He held the rank of major and led the reconnaissance
division. The complainant worked for the student wing from 2005 to 2007. He served as
secretary to the political chief of the Liberation Tigers in the Vavuniya district.
2.2
In 2007, the Liberation Tigers of Tamil Eelam attempted to forcibly recruit the
complainant’s younger sister. The complainant offered to take her place in order to protect
her and joined the movement as an active member. After one month of training, he joined the
northern border guard unit. The fact that his half-brother R. was a high-ranking member of
the Liberation Tigers of Tamil Eelam meant that the complainant was entrusted with
administrative tasks. He managed warehouses and organized the distribution of supplies
(food, medicine, ammunition and explosives) to various camps and storage sites run by the
Liberation Tigers near the front line. Towards the end of the war, the complainant was
responsible for packing weapons, jewellery and cash for concealment underground.
2.3
In April 2009, shortly before the end of the war, R. voluntarily handed himself over
to the Sri Lankan army along with his mother (the complainant’s aunt). Both were killed by
the army when they surrendered. In May 2009, during the final days of the war, the
Government of Sri Lanka declared a ceasefire zone around Mullivaikkal. On 16 May 2009,
the complainant surrendered to the Sri Lankan army and was taken alongside civilians to a
refugee camp where his mother and sister were staying. Three days after his arrival, the
Criminal Investigation Department searched the camp with the help of a member of the
Liberation Tigers of Tamil Eelam who had surrendered. This former member identified the
complainant as a member of the movement. That same day, the complainant was taken to a
detention centre, where his life was made hell. He feared that he had been disappeared until
six days later, when the International Committee of the Red Cross (ICRC) registered him. He
spent three years in “rehabilitative” detention in several camps and prisons. The complainant
was subjected to severe ill-treatment and torture during the interrogations of members of the
Liberation Tigers of Tamil Eelam and the army reserves. He also faced torture of a sexual
nature; the torturers tied a wire to his genitals and pulled on it, which caused heavy bleeding.
2.4
On 29 March 2012, the complainant was released from the rehabilitation programme
and taken to Colombo with other former members of the Liberation Tigers of Tamil Eelam.
He was released on 25 April 2012 on the condition that he would report to the police every
Sunday, remain in the same district, refrain from entering into contact with the wings of the
Liberation Tigers of Tamil Eelam abroad and with members of the movement in Sri Lanka
who had not been rehabilitated, and report any rumours concerning those members. In
November 2012, the complainant was arrested at the local police station. He and four other
individuals were taken to a camp to be interrogated. He was questioned about the members
of the Liberation Tigers of Tamil Eelam who had evaded detention and the names of those
who had concealed the goods and weapons that he had been responsible for packing. He was
also encouraged to work for the law enforcement authorities, which is why the interrogations
are said to have been more “humane”. The complainant’s mother went to the Criminal
Investigation Department every day to ask for him to be released. She succeeded after one
month by paying a sum of money.
2.5
In May 2013, the complainant was arrested on his way to a shop. He was blindfolded
and taken to a camp, which he believes was Joseph Camp in Vavuniya. He was detained for
15 days. He was interrogated and subjected to severe ill-treatment, as part of which his hands
were violently beaten until the tip of his little finger was almost detached. On the day of his
release, he was warned that he might not make it out alive next time. The complainant later
discovered that his father’s cousin, who lived in Colombo, supported the Government and
spoke Sinhalese, had managed to pay a bribe to secure his release. The complainant
subsequently experienced a significant deterioration in his mental and physical health. His
mother asked his uncle to take him to Colombo, where he hid in one of his uncle’s houses.
2.6
On 25 November 2013, the complainant fled to India using a fake passport. After
around three years, he left India and travelled via Oman to Türkiye. He stayed in Türkiye
until 28 November 2018, when he travelled to Greece, where his fingerprints were taken on
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2 January 2019. He then went on to Italy and, finally, to Switzerland. To this day, his family,
including his uncle who supports the regime, is regularly harassed by the police.
2.7
On 29 January 2019, the complainant submitted an application for asylum. The State
Secretariat for Migration interviewed him on 6 February 2019 and 8 June 2020. The
complainant produced the following evidence: a document from ICRC confirming his
rehabilitative detention, a detention order issued under Sri Lankan counter-terrorism law,
death certificates for his aunt and half-brother, a photograph of his half-brother R. wearing
the full military uniform of the Liberation Tigers of Tamil Eelam, a photograph of the
complainant himself with the political chief of the Liberation Tigers in the Vavuniya district,
a residency certificate, five medical reports on his physical condition and a medical report
from 29 October 2019 confirming that he had reported having been repeatedly subjected to
torture in Sri Lanka (in particular physical, psychological and sexual violence) and that he
was showing clear signs of post-traumatic stress disorder and a moderate depressive episode.
In view of the sexual torture he had suffered, the complainant was questioned by an all-male
team.
2.8
On 20 August 2020, the State Secretariat for Migration dismissed the complainant’s
request for asylum. The State Secretariat accepted that the complainant had been detained
between 2009 and 2012 for rehabilitative purposes and that he had carried out certain tasks
for the Liberation Tigers of Tamil Eelam. It did not find it credible, however, that the
complainant had been arrested and detained after 2012 or that he had left Sri Lanka in
November 2013. The State Secretariat noted contradictions in his account of the
circumstances, locations and duration of his two detentions in November 2012 and May
2013. The complainant stated in his first interview that he had been detained twice after
completing his rehabilitation but did not mention that he had been held for a long period.
Then, in his second interview, he spontaneously stated that his first detention had lasted one
month and his second detention 15 days. In addition, in his first interview, the complainant
stated that he had been arrested in November 2012 after being asked to attend a meeting,
whereas, in the second interview, he stated that he had been asked to report to the police
station and had been arrested there but did not mention that that arrest had taken place during
a meeting.
2.9
The State Secretariat for Migration noted that, in his first interview, the complainant
stated that he had spent both of his periods of detention in Joseph Camp, whereas, in his
second interview, he indicated that he had spent the second detention period in Joseph Camp
and the first detention period in a different camp. The State Secretariat also noted that, during
his first interview, the complainant failed to mention that, the second time he had been
detained, he had been released with the help of a family member and on payment of a sum
of money. The complainant was unable to explain these contradictions. The State Secretariat
then pointed out that the complainant had given two completely contradictory explanations
as to why he had left Sri Lanka. The first explanation was that, after his two periods in
detention, he feared that someone in his village would report him for having worked for the
Liberation Tigers of Tamil Eelam between 2005 and 2008. The second explanation was that,
after discovering that he had worked for the Liberation Tigers of Tamil Eelam and been
responsible for concealing items underground, the Sri Lankan authorities assumed that he
held that kind of information, which was why he was arrested, interrogated and subjected to
ill-treatment.
2.10
The State Secretariat for Migration also noted that the complainant had described his
work for the Liberation Tigers of Tamil Eelam in different ways. Thus, in his second
interview, he had described the tasks that he had carried out for the movement in much greater
detail. In particular, the complainant had not mentioned in his first interview that he was
responsible for concealing items underground, which raised questions about the credibility
of his account of activities for the movement. Furthermore, this alleged responsibility, which
had not been mentioned in the first interview, was presented as a key issue in the second one,
since the complainant cited it as being the main reason for which he left his country.
2.11
The State Secretariat for Migration then noted the complainant’s largely
unsubstantiated statements about his two detentions in 2012 and 2013. Although he was
expressly asked during his second interview to go into detail about his arrests and detentions,
the complainant avoided giving details, specific explanations and responses to questions.
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Instead, he focused on the fact that he had been forced to share information, which was not
contested, and on the person who had secured his release. He was also unable to make specific
comparisons between his detention in 2012 and his detention for rehabilitative purposes. The
State Secretariat therefore expressed doubts about the alleged detentions in 2012 and 2013.
2.12
The State Secretariat for Migration expressed astonishment at the complainant’s
statements that, after he had left the country, the Sri Lankan authorities paid frequent visits
to his family to ask about him, since he had not mentioned any such visits after May 2013,
which was when he had gone into hiding after being released from detention for the second
time. He had failed to honour the obligation to report to the police on a weekly basis as early
as May 2013, and not six months later when he left the country, which means that, logically,
the authorities should have been looking for him since May 2013. The State Secretariat also
noted that, in his first interview, the complainant had stated that the authorities had caused
problems for his family, whereas, in the second interview, he made no mention whatsoever
of this aspect.
2.13
Lastly, the State Secretariat for Migration was of the view that the complainant had
been unable to provide credible proof that he had indeed left his country in November 2013.
He had not produced any documents from the places in which he had lived between
November 2013 and January 2019, which cast doubt over the claim that he had left his
country in November 2013. The State Secretariat came to the conclusion that the
complainant’s allegations concerning the period that followed his rehabilitation were not
credible. It then examined whether he would face any risks if deported. In particular, it noted
that the complainant had not claimed to have been persecuted as a result of his ties with his
half-brother R., who had been a member of the Liberation Tigers of Tamil Eelam. With
regard to the complainant’s post-traumatic stress disorder, the State Secretariat noted that
treatment was offered by private clinics and the psychiatry departments of the national public
hospital in Colombo and the general hospital in Vavuniya.
2.14
On 21 September 2020, the complainant lodged an appeal. He produced photographs
of various scars on his body, a certificate issued by the office of the chief police inspector in
Chennai, India, confirming that the complainant’s host family had arrived from Sri Lanka in
2009 and resided in the city, a confirmation letter from this host family in India and a letter
from a justice of the peace in Vavuniya confirming the complainant’s arrests and detentions
in November 2012 and May 2013. He also presented three translations of newspaper articles
from July and August 2020 and four newspaper articles in Tamil, one of which dealt
specifically with three arrests in his village, where nine other Tamil individuals were still
being sought. The complainant’s representative promised to submit a final medical report on
the sexual torture he had suffered. On 14 December 2021, the Federal Administrative Court
requested the representative to provide that report. On 18 January 2022, the representative
submitted a medical report from the complainant’s general practitioner and a discharge report
concerning outpatient treatment delivered from 2 July to 29 November 2019.
2.15
On 30 March 2022, the Federal Administrative Court rejected the complainant’s
appeal. In contrast to the State Secretariat for Migration, the Court found the complainant’s
description of his work for the Liberation Tigers of Tamil Eelam and the rehabilitation period
to be credible. However, like the State Secretariat, the Court questioned whether the
allegations concerning his arrests after the rehabilitation period were credible given the
contradictions in his account and his unconvincing explanations. The Court also cast doubt
over his three-year stay in India, since the identity of his host family and the information in
their letter could not be reliably verified.
2.16
Although the Federal Administrative Court acknowledged that the complainant had
provided a very explicit description of the sexual torture, it did not find this part of the account
to be credible, since the complainant’s representative – who was a specialist in asylum law –
had initially promised to provide a detailed report, which she then failed to submit without
any explanation, and the final report did not specifically address sexual torture. The Court
found the complainant’s situation after he left the rehabilitation programme in 2012 to be
unclear and was of the view that he would not be at risk if returned. In particular, it noted
that the complainant had not held a leadership position within the Liberation Tigers of Tamil
Eelam and had not been involved in combat operations. The Court thus found no evidence in
the complainant’s case to suggest that he had attracted the attention of the Sri Lankan
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authorities as someone who might seek to revive the Tamil separatist movement. Finally, his
scars were low-risk factors. Besides, they could be hidden by clothing and, in the case of
those on the back of his head, covered by his hair.
2.17
The complainant suffers from post-traumatic stress disorder, insomnia and moderate
depression. He has scars on the back of his head, both knees and one finger as a result of the
torture he faced. The injuries to his genitals cause him to bleed when he tries to have sexual
relations. In Switzerland, he participated in a demonstration against the Government of Sri
Lanka held in 2021 in front of the United Nations Office at Geneva on the occasion of the
forty-sixth session of the Human Rights Council, during which the situation of human rights
in Sri Lanka was examined.
Complaint
3.1
The complainant claims that his deportation to Sri Lanka would constitute a violation
of his rights under articles 3 and 16 of the Convention. He was subjected to torture while in
rehabilitative detention,2 which indicates that he is at risk of torture if deported.3
3.2
The complainant adds that he was a member of the Liberation Tigers of Tamil Eelam
until the end of the war and that his half-brother was a high-ranking member of the movement
who was killed by the Sri Lankan army. He also states that he spent three years in
rehabilitative detention owing to his links with the movement, that he has scars on his scalp,
knees and fingers and that he comes from the north of Sri Lanka. All these factors make it
very likely that the complainant would be at risk of ill-treatment by the authorities if he were
returned to Sri Lanka, as is recognized by Swiss and international jurisprudence.
3.3
In addition to these significant risk factors, the complainant was harassed by the Sri
Lankan police while he was supposed to have reported to a police station after being released
from rehabilitative detention. He has been living in Western countries since at least January
2019, spending most of that time in Switzerland, which is a hub for financing the Liberation
Tigers of Tamil Eelam; he cannot travel on his own passport; and he failed to fulfil his
obligation to report to a police station in Sri Lanka on a weekly basis.
3.4
Lastly, the complainant contests the decision of the Federal Administrative Court,
which failed to carry out an independent and individualized assessment of his case that took
into account his vulnerability as a survivor of torture and the profiles of both him and his
half-brother. The Court did not apply its own reference judgment. 4 It attached critical
importance to the fact that the complainant’s former representative had failed to add a
medical report to the file, even though she was said to have requested the document from the
medical institution, which reportedly never received her email. The Court also noted that the
complainant had given a graphic and detailed description of the torture to his genitals.
Although it was not decisive, the complainant presented a great deal of evidence concerning
his illegal stay in India, which was not properly taken into account.
State Party’s observations on admissibility and the merits
4.1
On 19 April 2023, the State Party submitted its observations. It first argues that the
complainant did not raise a separate or independent claim under article 16 of the Convention.5
It then notes that, in his communication, the complainant claims to have taken part in 2021
in a demonstration in front of the United Nations Office at Geneva, which is a point he did
not mention when the appeal proceedings were ongoing before the Federal Administrative
Court. Moreover, the complainant provided the Committee with a medical report dated
30 May 2022, which had not been submitted to the asylum authorities. The State Party thus
2 The complainant produces a medical report dated 30 May 2022, according to which he suffers from
post-traumatic stress disorder (with a score of 36 out of 80 points) and a moderate episode of
recurrent depressive disorder.
3 Committee against Torture, general comment No. 4 (2017), paras. 28, 29 (a), (b) and (c) and 49 (b).
4 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
5 R.K. v. Switzerland (CAT/C/75/D/951/2019), paras. 6.3 and 6.5.
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considers that the complainant has not exhausted all domestic remedies, given that he had the
option to request a review or re-examination of his asylum application based on new
evidence.
4.2
With regard to 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 respects6 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 reference judgment.7 According to this judgment, not all returnees with a real or supposed
present or past link to the Liberation Tigers of Tamil Eelam necessarily risk persecution.
Only persons accused of rekindling ethnic conflict face such a risk. The same applies to Sri
Lankan nationals who have engaged in political activities in exile. In the present case, the
complainant has failed to plausibly argue that he had attracted the attention of the Sri Lankan
authorities after the end of hostilities.
4.3
The State Party notes that the national authorities did not challenge the complainant’s
allegations concerning his work for the Liberation Tigers of Tamil Eelam and the
rehabilitation process he claims to have undergone, during which he was allegedly subjected
to torture and ill-treatment. In contrast, the complainant’s statements that he was detained
after being released from the rehabilitation programme and that he lived in India for three
years do not appear credible.
4.4
In the State Party’s view, the complainant does not have a profile that makes him a
person of interest to his country’s authorities. He was a mere member of the Liberation Tigers
of Tamil Eelam who performed administrative tasks for the movement; he did not hold a
leadership position and did not participate in any acts of combat. With regard to the political
activities that the complainant claimed in his communication to have participated in while in
exile, the State Party reiterates that he has not exhausted domestic remedies in relation to this
matter. In the event that the Committee were nevertheless to decide to take those activities
into account, it should be noted that they amount to nothing more than participation in a
single event, which would not make the complainant appear in the eyes of the Sri Lankan
authorities to present a risk to the State.
4.5
With regard to the complainant’s medical situation, the State Party submits that his
psychological disorders can be adequately treated in Sri Lanka. Appointments are offered by
several private clinics, in addition to the National Hospital of Sri Lanka in Colombo, the
general hospital in Vavuniya and the base hospitals in Chavakachcheri and Point Pedro. It
should also be recalled that public healthcare is free in Sri Lanka. The fact that the standard
of treatment may not correspond to that available in Switzerland is not sufficient to consider
that the complainant’s return would be contrary to the Convention.
4.6
Contrary to the complainant’s assertion, although the Federal Administrative Court
did indeed take into account the fact that the complainant’s representative, who is a specialist
in asylum law, had not sent it the report on the sexual torture allegedly faced by the
complainant, even after she had been expressly invited to do so in an interim ruling, a reading
of the judgment as a whole shows that this element was not a decisive factor in the Court’s
assessment, especially since the complainant’s allegations of torture during his rehabilitation
had not been challenged by the national authorities. In particular, the Court took into account
a detailed analysis of the complainant’s allegations concerning the period between his release
from the rehabilitation programme and his registration by the Greek authorities and the lack
of relevant evidence regarding his place of residence from 2013 onwards, based on which the
Court found his claims not to be credible.
4.7
With regard to the evidence that the complainant added to the file concerning his stay
in India, it is clear from the judgment of the Federal Administrative Court of 30 March 2022
that this evidence consisted of a single confirmation letter from private individuals, the author
and content of which could not be reliably verified. The Court was thus right to consider that
the complainant had failed to credibly argue that he had stayed in that country.
6 See CAT/C/LKA/CO/5.
7 Federal Administrative Court, judgment E-1866/2015.
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Complainant’s comments on the State Party’s observations
5.1
On 29 March 2024, the complainant submitted comments, in which he contested the
State Party’s arguments. He produced a new medical report dated 27 February 2024, which
confirms the diagnosis of post-traumatic stress disorder and a moderate episode of recurrent
depressive disorder. He also produced further evidence of his activism in Switzerland,
including photos of his taking part in a commemorative ceremony held in Fribourg on
27 November 2022 to honour the soldiers of the Liberation Tigers of Tamil Eelam who had
died in combat, at which tribute was paid to his half-brother, and photos of him at
demonstrations held in front of the United Nations Office at Geneva on 18 May 2023 and
4 March 2024. Lastly, the complainant provided three testimonies concerning his stay in
India.
5.2
With regard to the failure to exhaust domestic remedies alleged by the State Party, the
complainant submits that his participation in the 2021 demonstration in front of the
United Nations Office, the medical report dated 30 May 2022 and the public reports on the
political situation in Sri Lanka do not constitute new items of evidence that would enable him
to obtain an effective remedy through domestic appeal proceedings. The complainant has
already referred on several occasions during the domestic proceedings to his psychological
problems caused by torture and his diagnosis of post-traumatic stress disorder, insomnia and
depression.
5.3
The complainant admits that he did not mention his activism during the domestic
proceedings but explains that he had not been informed that it would be pertinent and that his
legal representative in those proceedings did not ask him about it. In any event, the State
Party notes, as it already did for the medical report, that the complainant’s participation in
the demonstration is not likely to make him appear in the eyes of the Sri Lankan authorities
to present a risk to the Government of Sri Lanka, thereby making it clear that this fact does
not constitute significant new evidence. It is therefore clear – as the State Party itself has
conceded – that a request for review based on the complainant’s participation in the
demonstration in 2021 will not provide him with an effective remedy.
5.4
The complainant refers again to the human rights situation in Sri Lanka and argues
that his Tamil ethnicity and the important roles that he and his half-brother held within the
Liberation Tigers of Tamil Eelam mean that he would risk facing treatment contrary to
article 3 of the Convention if returned to the country. As recognized by the State Party and
the Federal Administrative Court, the complainant’s rehabilitative detention lasted much
longer than is typical, indicating that the Sri Lankan authorities considered him to be of
particular interest, either because of his knowledge of the movement’s hiding places or
because of his ties to his half-brother who was a high-ranking member of the movement. This
undeniable fact unequivocally shows that the Sri Lankan authorities have a heightened
interest in the complainant and that he is thus at greater personal risk of being arrested and
subjected to torture if returned to Sri Lanka.
5.5
The complainant provides a detailed analysis of the alleged discrepancies that the
national authorities identified in his account, with a view to demonstrating that there are no
such discrepancies or, at most, only a few very minor ones. Furthermore, he recalls pointing
out that his departure from Sri Lanka and his stay in India had been illegal, which is why he
was unable to provide official documents to prove these facts.
5.6
Lastly, the complainant claims a violation of article 14 of the Convention. The recent
medical report confirms that, in order for the complainant’s post-traumatic stress disorder
and mental health to improve, it is essential that he continue his therapeutic treatment and
that this treatment take place in an objectively and subjectively safe environment. His
extreme fear of being rearrested, detained and tortured in Sri Lanka means that he would be
unable to feel safe in that country. The few medical treatment options that exist in Sri Lanka
are offered in the Sinhalese regions and are not accessible or available to the complainant.
Moreover, his extreme past experiences mean that he would be unable to trust a Sinhalese
counsellor. In addition, in Sri Lanka, mental health problems tend to be treated solely with
medication, and specialized rehabilitation treatment for survivors of torture does not exist.
Yet, in addition to medication, the complainant in Switzerland needs a complete course of
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treatment and access to a day clinic. According to his therapist, his return to Sri Lanka would
lead to decompensation, and the continuation of his trauma-specific treatment is
“recommended as a matter of urgency”.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
The Committee notes that the State Party has contested the exhaustion of all available
domestic remedies by the complainant because he did not request the review or
re-examination of his case in order to allow the competent national authorities to evaluate his
claim concerning his political activities in exile and a new medical report that he presented
in his complaint to the Committee. The Committee notes that the complainant admits that he
did not mention his activism during the domestic proceedings. As a result, the Committee
concludes that, pursuant to article 22 (5) (b) of the Convention, the portion of the
communication that concerns the complainant’s political activities in Switzerland is
inadmissible because domestic remedies have not been exhausted.
6.3
The Committee then takes note of the complainant’s argument that he had mentioned
his medical situation on several occasions during the domestic proceedings. The Committee
is of the view that the new medical reports do not provide new facts or evidence to support
new allegations but represent additional evidence to support his original allegations of torture
and ill-treatment. The Committee considers that the complainant’s claims before the
Committee are based on a set of facts that were examined by the State Party’s authorities and
that have been sufficiently substantiated for the purposes of admissibility.8 The Committee
therefore finds with regard to the new medical reports that it is not precluded from
considering the article 3 claim under article 22 (5) (b) of the Convention.
6.4
The Committee notes that the complainant first made express mention of a violation
of his rights under article 14 of the Convention in his comments on the State Party’s
observations. However, the Committee notes that the State Party raised the inadmissibility of
the claim under this article in its observations. The State Party also argued that the
complainant had not raised a separate or autonomous claim under article 16 of the
Convention.
6.5
The Committee observes that the goal of the complainant in submitting the present
complaint is to avoid being deported to Sri Lanka and that, to this end, he claims that the
State Party would be in breach of its obligations under article 3 of the Convention if
deportation took place. The Committee considers that the complainant’s claims under
articles 14 and 16 of the Convention are not independent claims but rather ones forming part
of his allegations regarding his personal situation in support of his claim under article 3.9 The
Committee also considers that the complainant has not substantiated that the facts as
submitted raise separate issues under articles 14 and 16 of the Convention.10 In the absence
of further explanations, the Committee considers that that aspect of the communication is not
sufficiently substantiated.
6.6
In the absence of any other obstacle to the admissibility of the communication, the
Committee proceeds with its consideration of the merits of the claims submitted by the
complainant under article 3 of the Convention.
8 A.Sh. et al. v. Switzerland (CAT/C/63/D/717/2015), paras. 8.3 and 8.4.
9 Harun v. Switzerland (CAT/C/65/D/758/2016), para. 8.3.
10 N.A. v. Switzerland (CAT/C/79/D/1096/2021), para. 8.3; and Harun v. Switzerland, para. 8.7.
CAT/C/83/D/1153/2022
GE.25-21031
9
Consideration of the merits
7.1
In accordance with article 22 (4) of the Convention, the Committee has considered
the communication in the light of all the information made available to it by the parties.
7.2
In the present case, the issue before the Committee is whether the return of the
complainant to Sri Lanka would constitute a violation of the State Party’s obligation under
article 3 of the Convention not to expel or to return (“refouler”) a person to another State
where there are grounds for believing that he or she would be in danger of being subjected to
torture.
7.3
The Committee must evaluate whether there are substantial grounds for believing that
the complainant would be personally in danger of being subjected to torture upon return to
Sri Lanka. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the existence of a
consistent pattern of gross, flagrant or mass violations of human rights. However, the
Committee recalls that the aim of this determination is to establish whether the individual
concerned would be personally at a foreseeable, present and real risk of being subjected to
torture in the country to which he or she would be returned. It follows that the existence of a
pattern of gross, flagrant or mass violations of human rights in a country does not as such
constitute sufficient reason for determining that a particular person would be in danger of
being subjected to torture on return to that country; additional grounds must be adduced to
show that the individual concerned would be personally at risk. Moreover, although past
events may be of relevance, the principal question before the Committee is whether the
complainant currently runs a risk of torture if returned to Sri Lanka.11
7.4
The Committee refers to its general comment No. 4 (2017), according to which the
risk of torture must be assessed on grounds that go beyond mere theory or suspicion.
Although the risk does not have to be shown to be “highly probable”, the burden of proof
generally falls on the complainant, who must present an arguable case establishing that he or
she faces a foreseeable, real and personal risk.12 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.13
7.5
In the present case, the Committee notes the complainant’s claims that he would be in
danger of facing treatment contrary to article 3 of the Convention if returned to Sri Lanka, as
he would risk detention, acts of torture and ill-treatment because of his and his late
half-brother’s connections to the Liberation Tigers of Tamil Eelam, particularly given the
human rights situation in Sri Lanka, his Tamil ethnicity and his absence from the country.
The Committee also takes note of the complainant’s assertions that he was tortured while
being held in so-called rehabilitative detention and was later detained, interrogated and
subjected to ill-treatment on two occasions.
7.6
The Committee notes that the State Party referred to the contradictions that the asylum
authorities had identified in the complainant’s account and the fact that those authorities
concluded that the complainant had failed to plausibly argue that he had attracted the attention
of the Sri Lankan authorities. The Committee also notes that the Swiss authorities duly
examined the complainant’s allegations in support of his request for asylum but highlighted
the inconsistencies therein and expressed doubts as to their credibility.
7.7
In particular, the Committee notes that, while the Swiss authorities did not question
the credibility of the complainant’s allegations concerning his rehabilitative detention, the
ill-treatment he suffered during that detention and his links with the Liberation Tigers of
Tamil Eelam, they did contest the credibility of his claims that his work for the Liberation
Tigers of Tamil Eelam had led to his persecution by the Sri Lankan authorities, which was
11 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
12 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.
13 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
CAT/C/83/D/1153/2022
10
GE.25-21031
the direct cause of his flight from the country. Moreover, the Swiss authorities expressed
doubts regarding the complainant’s alleged stay in India.
7.8
The Committee notes, however, that even if it were to accept the claim that the
complainant was subjected to acts of torture and ill-treatment in the past, the question is
whether he remains, at present, at risk of torture in Sri Lanka in the event of his forcible return
there.14 The Committee also notes that, according to its jurisprudence, it is normally for the
complainant to present an arguable case.15 In the present case, the Committee is of the view
that the complainant has not provided credible information suggesting that the Sri Lankan
authorities are currently interested in him. The complainant has also failed to demonstrate
that his family is currently being persecuted owing to his past activities.
7.9
With respect to the argument relating to the worsening of the human rights situation
in Sri Lanka, the Committee recalls that the occurrence of human rights violations in the
complainant’s country of origin is not, of 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. However, it cannot be concluded on the basis of the evidence provided that the
complainant would personally be at risk of facing torture or inhuman or degrading treatment
if he returned to Sri Lanka.
7.10
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.
8.
The Committee, acting under article 22 (7) of the Convention, concludes that the
return of the complainant to Sri Lanka would not constitute a breach of article 3 of the
Convention by the State Party.
14 N.K. v. Switzerland, para. 7.10.
15 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.