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.26-07610 (E) 120626 120626
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1127/2022*, **, ***
Communication submitted by:
R and B (represented by counsel, Nesrin Ulu and
Fazil Ahmet Tamer)
Alleged victims:
The complainants and O
State Party:
Switzerland
Date of complaint:
1 February 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 9 May 2022 (not issued in
document form)
Date of adoption of decision:
17 April 2026
Subject matter:
Deportation to Iraq
Procedural issues:
Exhaustion of domestic remedies; admissibility –
ratione materiae
Substantive issue:
Risk to life or risk of torture or other cruel,
inhuman or degrading treatment or punishment,
if deported to country of origin
(non-refoulement)
Article of the Convention:
3
1.1
The complainants are R, born in 1994, and his partner B, born in 1992. They submit
the communication on their own behalf and on behalf of their child O, born in 2018. The
complainants are nationals of Iraq from the Kurdistan Region of Iraq who applied for asylum
in Switzerland, but their applications were rejected. They are facing deportation to Iraq and
submit that their deportation would constitute a violation by the State Party of article 3 of the
Convention. The State Party made the declaration provided for in article 22 (1) of the
Convention on 2 December 1986. The complainants are represented by counsel.
* Adopted by the Committee at its eighty-fourth session (13 April–1 May 2026).
** The following members of the Committee participated in the examination of the communication:
Jorge Contesse, Lorena González Pinto, Claude Heller, Erdogan Iscan, Peter Vedel Kessing,
Liu Huawen, Maeda Naoko, Moulaye Abdallah Moulaye Abdallah, Ana Racu and
Abderrazak Rouwane.
*** A joint opinion by Committee members Jorge Contesse, Lorena González Pinto and
Peter Vedel Kessing (dissenting) is annexed to the present decision.
United Nations
CAT/C/84/D/1127/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
12 June 2026
Original: English
CAT/C/84/D/1127/2022
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1.2
On 9 May 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 complainants to Iraq while their communication was being considered by
the Committee.
1.3
On 17 May 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 complainants, so that they could be
assured of remaining in Switzerland pending the consideration of their complaint by the
Committee.
Factual background
2.1
The complainants entered Switzerland on 15 June 2018 and submitted asylum
applications the following day. The State Secretariat for Migration interviewed R on 22 June
2018 and 19 December 2018, and B on 22 June 2018 and 26 July 2019.
2.2
In support of her asylum application, B submitted that her father had intended to force
her to marry, but she had sought to prevent this by secretly having sexual intercourse with
her partner, R. By doing so, she hoped to make her father agree to allow her to marry R, but
the father refused R’s requests because R was poor and because he had already decided to
marry her to her wealthy cousin. When B’s relatives found out about her relationship with R,
they beat R. B unexpectedly fell pregnant, which triggered the imminent risk of an honour
killing. However, her mother wanted to protect her, so she helped the complainants to escape
the country.1 In accordance with tribal law, B’s older brother was entrusted with the task of
killing her, but he was against this, meaning that B’s brother also needed to leave the country
with his wife and children and with the complainants. Moreover, B’s family attacked R’s
family with weapons, and the security authorities had to intervene to protect R’s family. The
matter had thus evolved into a blood feud, and B did not want to be locked up in a women’s
shelter for an indefinite period.
2.3
On 26 February 2020, the State Secretariat for Migration rejected the complainants’
request for asylum. It held that assaults by third parties or fears of being subjected to such
assaults in the future were only relevant to asylum if the State does not fulfil its duty to protect
or is not in a position to provide protection. In general, protection is guaranteed if the State
takes appropriate measures to prevent persecution, for example by having effective police
and judicial bodies to investigate, prosecute and punish acts of persecution, and if
complainants have access to this protection. In that connection, the State Secretariat invoked
a landmark judgment of the Federal Administrative Court, which held that the authorities of
the Kurdistan Region of Iraq were in principle willing to grant the inhabitants of three
northern Iraqi provinces protection from possible persecution.2 In that decision, the Court
found that persons who were persecuted or threatened by third parties because of a blood
feud or because of family problems could count on State protection, unless there were
well-founded indications that the authorities did not want to protect them.
2.4
The State Secretariat for Migration noted that the complainants had not attempted to
approach the authorities to request protection. It found the reasons given for not doing so to
be unconvincing. In the case of a threat of the intensity claimed, the State Secretariat deemed
that it could have been expected that B would have taken every opportunity to find protection
and a permanent solution. There were no indications in her statements or in the file of an
absence of willingness to protect on the part of the authorities. Thus, the State Secretariat
considered that the ability and willingness of her home State to provide protection was to be
assumed.
2.5
The State Secretariat for Migration further noted that, in the same landmark judgment,
the Federal Administrative Court had held that, in spite of the information campaigns carried
out in Iraq and the revisions of the Penal Code, it was still not to be assumed that police
officers were willing to prevent crimes – such as honour killings – against women or to
investigate them comprehensively, due to a lack of sensitivity and insufficient protection
1 No details were provided.
2 Federal Administrative Court, Judgment E-6982/2006 of 22 January 2008, para. 6.7.
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infrastructure.3 In the complainants’ case, however, the State Secretariat held that it would
have been possible for them to ask the authorities for help. It held that B enjoyed the
protection of her partner, and it could be assumed that the authorities of the Kurdistan Region
of Iraq would take appropriate measures to protect the couple. It observed that R’s father
worked as a peshmerga.4
2.6
The State Secretariat for Migration then noted R’s statement that his family had
experienced threats from B’s family, but had received protection from the authorities of the
Kurdistan Region of Iraq, who had intervened and told B’s family not to approach. There
was thus no evidence that the authorities would not have been able or willing to provide
protection in the complainants’ specific case for any reason, although it accepted that no State
was in a position to grant absolute individual protection from non-State persecution.
2.7
The State Secretariat for Migration went further, to reveal contradictions in the
complainants’ statements at the interviews. R made conflicting declarations as to his marital
status, the year in which he had met B, the persons from his family who had approached B’s
family with the last marriage proposal, the moment when he had learned that B was pregnant,
and the year in which B’s family had attacked his own. When asked about some of these
contradictions, R explained that he had been ill and stressed when he had entered the State
Party, but this explanation was found not to be convincing by the State Secretariat. B then
made conflicting declarations as to the whereabouts of her identity card and passport, the
year in which she had met R, and the year in which she had found out that she had been
supposed to marry her cousin.
2.8
On 31 March 2020, the complainants appealed. They argued that, in the landmark
judgment invoked by the State Secretariat for Migration, the Federal Administrative Court
had found that, even in the case of private persecution by a family or a clan, especially honour
killings of women, it could still not be assumed that police officers in northern Iraq would be
willing to protect them or to comprehensively investigate such criminal offences against
women due to a lack of sensitivity and insufficient protective infrastructure. For them, it was
incomprehensible that this should be any different simply because B was under the protection
of her partner. The fact that R himself had been attacked by her family showed that this
argument was not valid. The fact that they had not asked the authorities in northern Iraq for
protection could not be held against them in view of the drastic measures that could have
been expected of them. Moreover, the protection granted would only have been temporary.
The complainants also contended that the State Secretariat had not dealt with the question of
the reasonableness of any protective measures taken by the authorities of the Kurdistan
Region of Iraq and had not sufficiently clarified whether honour killings were still taking
place in northern Iraq and what the situation was with regard to the ability of the authorities
there to provide protection.
2.9
On 1 October 2021, the Federal Administrative Court dismissed the appeal. Contrary
to the complainants’ view, it held that the State Secretariat for Migration had sufficiently
clarified and taken into account the relevant factual circumstances, explaining why it had
assumed that there was a functioning protection infrastructure in northern Iraq that the
complainants could reasonably be expected to make use of. The fact that it had come to a
different conclusion than the complainants with regard to these questions did not in any case
constitute a violation of the principle of ex officio investigation.
2.10
The Federal Administrative Court accepted that, based on the evidence in the file, the
conflict with B’s family was credible. As the persecution invoked did not originate from State
organs, but from private parties, it examined whether the complainants could find protection
in their country of origin. In that connection, it referred to its previous landmark judgment,
invoked by the State Secretariat for Migration, in which it had explained in detail that the
security authorities of the Kurdistan Region of Iraq were, in principle, able and willing to
grant inhabitants protection from persecution, and noted that it had later confirmed that
assessment, which continued to be valid. 5 However, if the attacks originated from the
3 Ibid.
4 The armed forces of the Kurdistan Regional Government in Iraq.
5 Federal Administrative Court, Judgments E-6982/2006 of 22 January 2008; E-3737/2015 of
14 December 2015; and D-1927/2019 of 23 May 2019.
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majority parties, or their organs or members, the State could not be expected to provide
protection through the police and security forces due to the close interconnection of party and
authority structures. According to the case law of the Federal Administrative Court, in cases
of threats of persecution by private individuals, it must be taken into account that, in general,
especially in cases of honour killings that primarily affected women, it could not be assumed
that the police were willing to prevent such crimes or investigate them thoroughly due to a
lack of sensitivity and inadequate protection infrastructure.6
2.11
The Federal Administrative Court then referred to the complainants’ statements that
they had not attempted to seek protection from the authorities in their country of origin, but
was not convinced by B’s explanation that she had refrained from doing so because of the
radical measures that the police might have taken, namely, forcing her to live in a women’s
shelter for an indefinite period. Given that B was not single, but could count on the support
of her partner and his family, it could not be assumed that the authorities of the Kurdistan
Region of Iraq would pressure her to move to a shelter that she would not be allowed to leave.
The Court then found, based on the complainants’ submissions, that R’s family enjoyed
protection from the government of the Kurdistan Region. Thus, R declared at the hearing
before the State Secretariat for Migration that the government had intervened after his
partner’s family had attacked his relatives and that his family was under the protection of the
Asayish.7 B also declared that her father did not dare to take action against her partner’s
family because it was powerful and under the protection of Masoud Barzani, the former
President of the Kurdistan Region.8 The Court therefore deduced that there was no reason to
assume that the complainants could not also claim this protection. It thus held that their claim
to the contrary, which was not substantiated in any detail, was not convincing. Nor was there
any substantive evidence to support their argument that such protection would only be
temporary.
2.12
In view of the above, the Federal Administrative Court concluded that the
complainants would not be defenceless in the face of possible family violence, in particular
by B’s father. This finding was not inconsistent with the general findings of the previous
landmark judgments. Therefore, the Court held that, based on the specific circumstances of
the case, it could be assumed that the authorities in northern Iraq were willing and able to
offer the complainants the protection that they required. Furthermore, recourse to this
protection could also be considered as being reasonably required. Consequently, the Court
found no need for further clarification regarding the existence of honour killings in northern
Iraq and the ability of the local authorities to provide protection. Lastly, the Court noted that,
in an interim order of the investigating judge of 14 April 2020, the complainants’ requests
for waiving the legal costs of an appeal and for being granted free legal aid had been accepted
and that there were no indications in the file of a significant change in their financial
circumstances.
2.13
On 25 November 2021, the complainants lodged a new request for asylum, requesting
reassessment of their refugee status and reiterating their grounds for protection. R submitted
that he had learned through his father and then from a lawyer that an arrest warrant had been
issued against him on 14 October 2020, according to which he was accused under the Penal
Code of Iraq of kidnapping a minor.9 He argued that, if returned, he would be arrested and
imprisoned, and hence at risk of torture and subjection to inhuman and degrading conditions.
B reiterated that she had been unable to contact the authorities in her country of origin to seek
their protection. She also claimed that many members of her family were active in the security
services.
2.14
On 1 December 2021, the State Secretariat for Migration held that the complainants’
request was a request for revision of the judgment of 1 October 2021. Accordingly, it did not
examine their request, for lack of jurisdiction. On 9 December 2021, the complainants
appealed this decision to the Federal Administrative Court. They argued that the State
Secretariat had wrongly treated their new application as a request for reconsideration and that
6 Federal Administrative Court, Judgments D-7100/2018 and D-7102/2018 of 24 February 2020.
7 The official intelligence and security agency of the Kurdistan Region of Iraq.
8 President of the Kurdistan Region of Iraq from 2005 to 2017.
9 The English translations of the domestic decisions mention “kidnapping a woman”.
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their allegations relating to the arrest warrant had been wrongly treated as a request for
revision. They also requested that the contested decision be overturned and that their asylum
application be considered. The Federal Administrative Court dealt with the complainants’
arguments in separate proceedings: partly as an application for revision against its judgment
of 1 October 2021 with regard to their allegations concerning the arrest warrant of 14 October
2020 and B’s allegations that many members of her family were active in the security
services, and partly as an appeal against the decision of the State Secretariat of 1 December
2021 not to consider the case.
2.15
In an interim decision of 22 December 2021, the Federal Administrative Court
considered that the request for revision had no chance of success, noting that the
complainants’ arguments and the evidence produced were not such as to alter its assessment
in the judgment of 1 October 2021. In addition to the low evidentiary value of the copy of
the arrest warrant of 14 October 2020, the Court questioned the timing of the submission of
this evidence, because it was not clear what reasons could have justified the late production
of this document. It recalled that revision required newly discovered facts or newly found
evidence that had existed before the judgment, and such facts must be legally relevant.
Revision could not be used to remedy failures in earlier evidence-gathering and was excluded
when significant facts could have been discovered during the earlier procedure through
reasonable diligence. Thus, evidence was only admissible if the party could not have
submitted it earlier.
2.16
The Federal Administrative Court noted that the complainants relied on evidence
dated 2019 and 2020, which predated the judgment of 1 October 2021. It also noted that the
complainants themselves declared that it had only been after receiving the judgment of
1 October 2021 that they had taken steps to clarify their situation in their region of origin and
had obtained a copy of the arrest warrant from a lawyer. However, the Court held that the
complainants must have been in possession of this document shortly after receiving the
judgment of 1 October 2021, given that the translation was already available on 1 November
2021. No plausible explanation was given for why the warrant had not been submitted earlier.
2.17
In addition, the Federal Administrative Court expressed doubts about the
investigations of R alleged by the complainants, given that there had been no mention during
the ordinary asylum procedure of a possible criminal complaint by B’s family or of
proceedings against R. Given the time that had elapsed between the complainants’ departure
from their country and the judgment of 1 October 2021, the Court deemed that they should
have been aware of any proceedings brought against them. The Court also found
unconvincing the claimed problems that would be posed to B by her relatives allegedly
connected with the security services.
2.18
The Federal Administrative Court therefore concluded that the request for revision
had no chance of success and denied the request for free legal aid due to lack of merit. It set
a deadline for the complainants to pay 1,500 Swiss francs to cover legal costs. On 17 January
2022, the Court declared the complainants’ request for revision inadmissible on grounds of
failure to pay the advance costs.
Complaint
3.1
The complainants claim that their deportation to the Kurdistan Region of Iraq would
constitute a violation of their rights under article 3 of the Convention. Their 3-year-old child
has already been suffering from psychological trauma for fear of being deported.10
3.2
The complainants submit that they were unable to pay the advance costs of their
appeal and contest the way in which the Swiss authorities examined the current situation in
the Kurdistan Region of Iraq with respect to the situation of women, honour killings and
blood feuds. According to them, the 2008 landmark judgment of the Federal Administrative
Court is no longer up to date. They contend that B has invoked gender-specific grounds for
10 No details were provided.
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asylum and refer to reports on the situation of women in the Kurdistan Region, which include
information on honour killings and access to shelters.11
State Party’s observations on admissibility and the merits
4.1
On 1 November 2022, the State Party submitted its observations. It contests the
admissibility of the communication on the grounds that the complainants have not exhausted
domestic remedies and that their allegations are inadmissible ratione materiae. Thus, the
State Party notes that the complainants’ request for revision has not been examined because
they have not paid the advance costs and that they have not explained in their communication
to the Committee why they did not pay those costs.
4.2
The State Party contends that, in their asylum proceedings, the complainants did not
invoke treatment within the meaning of article 1 of the Convention. They claimed that, in
case of return, B would be killed by her father, which means that they invoked the right to
life, which is not protected by the Convention. There is also no involvement of a public
official in the alleged treatment.12 For the State Party, the complainants simply claim that the
authorities would not be able to protect them from B’s father.
4.3
On the merits, the State Party submits that the general human rights situation in
northern Iraq is not such that a removal could be considered inadmissible. It notes that the
complainants did not allege that they had been subjected to torture or ill-treatment in their
country of origin and concludes that they have not demonstrated that there is a foreseeable,
personal, present and real risk that they would be exposed to torture or inhuman or degrading
treatment if returned to Iraq.
Complainants’ comments on the State Party’s observations on admissibility and the
merits
5.1
On 21 July 2025, the complainants submitted comments in which they contested the
State Party’s arguments. With regard to the alleged non-exhaustion of domestic remedies,
they explain that, following the rejection of an asylum application, asylum-seekers are
generally prohibited from working. As they were dependent on emergency asylum assistance,
they were unable to pay the advance costs of their appeal. The complainants had different
legal representatives in the two sets of proceedings, and the second representative is not
aware of the specific reasons why the first representative did not submit the evidence in the
proceedings. They also refer to the jurisprudence of the European Court of Human Rights,
which has ruled that a State’s failure to take measures against domestic violence constitutes
a violation of the Convention for the Protection of Human Rights and Fundamental Freedoms
(European Convention on Human Rights).13 They thus contest the State Party’s allegation
that torture and inhuman treatment may be carried out only by State organs, and not by private
parties.
5.2
The complainants submit that, in the event of deportation, until the death penalty is
finally carried out under tribal law, both of them would be exposed to various forms of
physical and psychological violence at the hands of the security authorities and B’s family.
Some of B’s relatives work for the security services. Accordingly, if she asked the authorities
for protection, those relatives would just hand her over to her family, which would kill her.
R has been sentenced to imprisonment for the abduction of a girl, meaning that he would be
arrested by the security services and, given B’s relatives’ links with the security services, he
would be tortured in detention.
11 Office of the United Nations High Commissioner for Refugees, International Protection
Considerations with Regard to People Fleeing the Republic of Iraq (May 2019); Swiss Refugee
Council, Irak: foyers pour femmes à Kirkouk (5 February 2018); and Danish Immigration Service,
Kurdistan Region of Iraq (KRI): Women and Men in Honour-related Conflicts (November 2018).
12 G.R.B. v. Sweden (CAT/C/20/D/83/1997), para. 6.5; and K.N. v. Switzerland (CAT/C/20/D/94/1997),
para. 10.4.
13 European Court of Human Rights, Opuz v. Turkey, Application No. 33401/02, Judgment,
9 June 2009.
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5.3
The complainants refer to a report published in 2023 by the State Secretariat for
Migration.14 Although the report states that it is not intended to provide a comprehensive
picture of violence against women or of the phenomenon of so-called honour killings, the
complainants allege that the report as a whole shows that murders and violence against
women in the Kurdistan Region of Iraq have not decreased in frequency, despite the
implementation of the protection against violence law of the Kurdistan Region. This, they
explain, is because the willingness and ability of the authorities of the Kurdistan Region to
provide protection are limited by conservative religious attitudes and the persistence of tribal
practices. The complainants consider that the State Secretariat’s general statements that there
is a functioning government in the Kurdistan Region of Iraq and that it is willing and able to
protect women against violence and femicide are not accurate. They argue that their
allegations are confirmed by this recent report of the State Secretariat.
5.4
The complainants have been living in Switzerland since 15 June 2018. Their children15
are now well integrated in Switzerland. Removal would jeopardize the safe and successful
integration of the children. In addition, the children would be at risk if their mother and father
became victims of a blood feud. The rights of the children should also be taken into account.
Losing parents through such acts of violence amounts to inhuman treatment.
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 recalls that, in accordance with article 22 (5) (b) of the Convention, it
shall not consider any communication from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. This rule does not apply where it
has been established that the application of the remedies has been unreasonably prolonged or
is unlikely to bring effective relief to the complainant.16
6.3
The Committee notes that the State Party challenges the admissibility of the complaint
on the grounds of non-exhaustion of domestic remedies. The State Party asserts that the
complainants’ request for revision has not been examined because they have not paid the
advance costs and that they have not explained in their communication to the Committee why
they did not pay those costs. However, the Committee notes that, in their initial submission,
the complainants clearly declared that they were unable to pay the costs and that, in their
comments of 21 July 2025, they explained that they could not work, as they did not have
work permits, and that they were dependent on emergency asylum assistance. It then recalls
that, under the State Party’s domestic law, there are two cumulative conditions that must be
met for a court to award legal aid: the complainant must be indigent, and his or her claims
must not appear to be bound to fail.17
6.4
In the present case, it is clear from the interim ruling of 22 December 2021 that the
Federal Administrative Court found, after a prima facie examination of the case file, that the
request for revision had no chance of success and that, consequently, the conditions for the
provision of legal aid were not met due to lack of merit. The Committee also notes that, in
its judgment of 1 October 2021, the Court mentioned that the complainants’ requests for
waiver of the legal costs of the appeal and for free legal aid had been accepted and that there
were no indications in the file of a significant change in their financial circumstances. The
State Party does not refute the presumption that the complainants’ financial situation had not
14 See https://www.sem.admin.ch/dam/sem/de/data/internationales/herkunftslaender/asien-
nahost/irq/irq-haeusliche-gewalt-d.pdf.download.pdf/irq-haeusliche-gewalt-d.pdf (in German).
15 In the meantime, the complainants had a second child.
16 For example, E.Y. v. Canada (CAT/C/43/D/307/2006/Rev.1), para. 9.2. See also general comment
No. 4 (2017), para. 34.
17 N.H. v. Switzerland (CAT/C/82/D/1024/2020), para. 4.3.
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changed between that judgment of 1 October 2021, when their indigence was noted, and the
interim ruling of 22 December 2021, when they were requested to pay the legal costs without
any consideration of their indigence. The Committee therefore finds that it is not precluded
from considering the communication under article 22 (5) (b) of the Convention.
6.5
The Committee then notes the State Party’s plea of inadmissibility ratione materiae
on the basis that the complainants did not invoke treatment within the meaning of article 1 of
the Convention: according to the State Party, there is no involvement of a public official in
the alleged treatment, and the complainants simply claim that the authorities of the Kurdistan
Region of Iraq would not be able to protect them from B’s father. The Committee expresses
disagreement with this argument raised by the State Party, as its own administrative and
judicial authorities – the State Secretariat for Migration and the Federal Administrative Court
– focused throughout their examination precisely on the State’s duty to provide protection
against assaults by third parties. In that respect, it recalls its general comment No. 2 (2007),
in which it made clear that, where State authorities or others acting in official capacity or
under colour of law know or have reasonable grounds to believe that acts of torture or
ill-treatment are being committed by private actors and they fail to exercise due diligence to
prevent, investigate, prosecute and punish such private actors consistently with the
Convention, the State bears responsibility, and its officials should be considered as authors,
complicit or otherwise responsible under the Convention for consenting to or acquiescing in
such impermissible acts.18 Accordingly, the Committee finds the complainants’ allegations
admissible ratione materiae.
6.6
In the absence of any other obstacle to the admissibility of the present communication,
the Committee proceeds with its consideration of the merits of the claims submitted by the
complainants under article 3 of the Convention.
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
complainants to the Kurdistan Region of Iraq 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 substantial 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 complainants would be personally in danger of being subjected to torture upon return to
the Kurdistan Region of Iraq. 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 determination is to establish whether the individual
concerned would be at a foreseeable, personal, 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.
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, personal, present and real risk.19 The Committee 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
18 General comment No. 2 (2007), para. 18.
19 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.
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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.20
7.5
In the present case, the complainants claim that they would be in danger of facing
treatment contrary to article 3 of the Convention if returned to the Kurdistan Region of Iraq,
as they would risk detention, acts of torture and ill-treatment because an arrest warrant has
been issued for R for having kidnapped B and because B risks being killed by her father for
having entered into a relationship with R and thus disobeying her father who wanted to marry
her to another man. The Committee notes the State Party’s reference to the contradictions
that the asylum authorities had identified in the complainants’ accounts. The complainants
have not provided a convincing explanation for those discrepancies, either to the Swiss
asylum authorities or to the Committee.
7.6
The Committee further notes that the Swiss authorities duly considered the
complainants’ allegations of lack of support from the authorities in their region. Both the
State Secretariat for Migration and the Federal Administrative Court examined the situation
in northern Iraq and concluded that the authorities there were willing and able to offer
protection to the complainants. They did, however, point to the fact that the complainants
had not even attempted to request protection from the authorities of the Kurdistan Region of
Iraq. While the complainants suggest that the information used by the Swiss authorities was
obsolete because they relied on a 2008 landmark judgment of the Federal Administrative
Court, the Committee notes that, in its 2021 judgment, the Court cited other landmark
judgments, from 2015 and 2019, to find that the information continued to be relevant.
7.7
The Committee notes that the Swiss authorities have not called into question the
complainants’ relationship. They have, however, considered that the complainants have not
demonstrated that B’s father exerts an influence over the authorities of the Kurdistan Region
of Iraq such as would render futile any attempt by the complainants to seek protection. In that
connection, the Committee observes that the complainants themselves admitted that B’s
family’s attack on R’s family was not successful because the authorities of the Kurdistan
Region intervened and effectively protected R’s family. It also notes that R’s father works as
a peshmerga, meaning that he has a connection to the armed forces of the regional
government. Moreover, it was the complainants themselves who declared before the Swiss
authorities that R’s family was under the protection of the security services and even under
the protection of the former President of the Kurdistan Region. While the Committee notes
that B alleges that members of her family are also active in the security services, it considers
that the information in the file shows that R’s family can benefit from protection by the
authorities, which even occurred in practice when they were attacked by B’s family.
Therefore, the Committee considers that the complainants have not demonstrated that a
request for protection from the authorities of the Kurdistan Region would be to no avail. They
have also not demonstrated that B’s family exerts any influence over the authorities of the
Kurdistan Region.
7.8
As to the alleged arrest warrant issued on 14 October 2020 against R, the Committee
notes that the Federal Administrative Court attributed to it a low evidentiary value because it
was a copy and also questioned the timing of its submission, considering that the
complainants might have had it in their possession when the appeal proceedings were
pending, but had not produced it at that procedural moment. The Committee does not accept
the complainants’ explanation, namely, that they had different representatives in the appeal
and revision proceedings and that the second counsel “is not aware of the reasons why the
evidence was not submitted”. 21 It appears from this formulation that the complainants’
counsel does not even question whether this evidence existed at the appeal stage, but only
why it was not submitted. The Committee then notes that the complainants do not provide
more information about this arrest warrant, such as why it was issued only in October 2020
in respect of events that had occurred in June 2018, whose complaint it was based on or what
event had triggered its issuance, on what date exactly they had become aware of its existence,
20 General comment No. 4 (2017), paras. 11, 39 and 50.
21 As stated by the complainants’ counsel in the comments of 21 July 2025.
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what exact steps had been followed to obtain a copy and whether the arrest warrant had been
communicated to anyone from their families.
7.9
With respect to the argument relating to the worsening of the human rights situation
in the northern part of Iraq, the Committee recalls that the occurrence of human rights
violations in a 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 also notes
that the complainants had ample opportunity to provide the State Secretariat for Migration
and the Federal Administrative Court with supporting evidence and more information about
their claims during the asylum proceedings. The Committee considers that the information
in the file does not allow it to conclude that the decision of the domestic authorities was
arbitrary in finding that the complainants have not demonstrated that they would face a
foreseeable, personal, present and real risk of being subjected to torture if they were to be
deported to the Kurdistan Region of Iraq, or that the authorities of the State Party failed to
conduct a proper investigation into their allegations.22
8.
On the basis of the above, and in the light of the material before it, including on the
general situation of human rights in the Kurdistan Region of Iraq, the Committee considers
that the complainants have not provided sufficient evidence to enable it to conclude that their
deportation to their country of origin would expose them to a foreseeable, personal, present
and real risk of being subjected to treatment contrary to article 3 of the Convention.
9.
The Committee, acting under article 22 (7) of the Convention, concludes that the
return of the complainants to Iraq would not constitute a breach of article 3 of the Convention
by the State Party.
22 S.A. v. Switzerland (CAT/C/76/D/1017/2020), para. 7.8; T.B. v. Switzerland (CAT/C/73/D/862/2018),
para. 7.11; and K.M. v. Switzerland (CAT/C/71/D/865/2018), para. 7.9.
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Annex
Joint opinion of Committee members Jorge Contesse,
Lorena González Pinto and Peter Vedel Kessing (dissenting)
1.
With all due respect, we are unable to agree with the Committee’s conclusion that the
complainants’ removal to the Kurdistan Region of Iraq would not constitute a violation of
article 3 of the Convention.
2.
We agree with the Committee that the present communication is admissible ratione
materiae, particularly in the light of general comment No. 2 (2007), in which the Committee
clearly established that acts of torture or ill-treatment committed by non-State actors may
engage the international responsibility of the State when the authorities know or have
reasonable grounds to believe that such acts are occurring and fail to act with due diligence
to prevent, investigate and punish them.1 However, we consider that the Committee did not
consistently apply this standard in its assessment of the merits.
3.
Based on the facts and evidence before the Committee, we are not persuaded that B
would benefit from effectively being protected against the risk of honour-based violence
perpetrated against her by her family if returned to Iraq.
4.
The relationship between the complainants – R and B – is deemed to be credible. As
noted by the majority, “the Swiss authorities have not called into question the complainants’
relationship” (see para. 7.7 of the Committee’s decision). Likewise, the Committee confirms
that, based on the evidence, the Federal Administrative Court of Switzerland accepted that
the conflict with B’s family was credible (see para. 2.10).
5.
It follows that the domestic authorities, as well as the majority of the Committee,
acknowledged both the existence of the relationship and the consequent risk of honour-based
violence perpetrated against B.
6.
The determinative issue is therefore whether sufficient and effective protection would
be available to B upon return.
7.
The State Party and the majority of the Committee rely on the abstract proposition
that the authorities of the Kurdistan Region of Iraq are, in principle, “able and willing to grant
… protection from persecution” (see para. 2.10). From this premise, they conclude that the
complainants could have sought protection from the domestic authorities and that their failure
to do so undermines their claims under the Convention.
8.
However, this reasoning is untenable when considered in the light of the Federal
Administrative Court’s established case law, cited in the Committee’s decision. According
to that jurisprudence, “in cases of threats of persecution by private individuals, it must be
taken into account that, in general, especially in cases of honour killings that primarily affect
women, it cannot be assumed that the police are willing to prevent such crimes or investigate
them thoroughly due to a lack of sensitivity and inadequate protection infrastructure” (see
para. 2.10). Previous isolated interventions by the authorities are insufficient to establish the
existence of effective, durable and accessible protection against a persistent threat emanating
from family members.
9.
In our view, this finding creates a fundamental inconsistency in the State Party’s
assessment. On the one hand, the complainants are faulted for not seeking protection from
the Iraqi authorities. On the other, it is expressly acknowledged that, in comparable cases,
those authorities cannot be relied upon to provide effective protection. The majority of the
Committee does not reconcile this contradiction.
1 General comment No. 2 (2007), para. 18.
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10.
The majority further relies on the fact that the authorities of the Kurdistan Region of
Iraq were willing and able to provide protection to R’s family against attacks from B’s family
in the past, and on that basis concludes that the complainants have not demonstrated that
seeking protection from the authorities would have been futile (see para. 7.7).
11.
We are not persuaded by this line of reasoning. As reflected in the case law of the
Federal Administrative Court of Switzerland, the fact that the authorities of the Kurdistan
Region of Iraq may have been willing to protect R’s family – particularly in the specific
circumstances, including the affiliation of R’s father with the peshmerga armed forces of the
Kurdistan Regional Government (see para. 2.5.) – does not establish that they would be
equally willing to protect B against honour-based violence perpetrated by her own family.
These are materially different situations. The available information – as described in the case
law of the Federal Administrative Court – indicates that women at risk of honour crimes face
particular and well-documented obstacles in accessing effective protection, and this
dimension is in our view not adequately reflected in the majority’s analysis.
12.
The case file contains sufficient information to conclude that the complainants’
situation involves vulnerabilities stemming from honour-based violence and family and tribal
structures that may significantly limit their effective access to State protection. In such
contexts, the Committee must exercise the principle of rigorous scrutiny with particular care,
especially where a woman and young children may be exposed to serious harm.
13.
The Committee has consistently held that protection must be practical, accessible and
effective, and not merely theoretical or illusory.2 In the present case, we are not satisfied that
the State Party has demonstrated that such protection would be available to B in practice.
14.
Taking into account all the circumstances of the case, considered as a whole, we
conclude that substantial grounds exist for believing that the complainants would face a
foreseeable, personal, present and real risk of treatment contrary to article 3 of the Convention
if returned to the Kurdistan Region of Iraq. Consequently, their removal constitutes a
violation by the State Party of its obligations under article 3 of the Convention.
2 For example, Njamba and Balikosa v. Sweden (CAT/C/44/D/322/2007), para. 9.5; E.K.W. v. Finland
(CAT/C/54/D/490/2012), para. 9.7; and Bakatu-Bia v. Sweden (CAT/C/46/D/379/2009), para. 10.6.