opencaselaw.ch

CAT/C/83/D/1153/2022

V.K. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2025-11-21 · 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.25-21031 (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.