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.26-06526 (E) 190526 190526
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1133/2022*, **
Communication submitted by:
A. (represented by counsel from the association
Caritas)
Alleged victim:
The complainant
State Party:
Switzerland
Date of complaint:
9 June 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 10 June 2022 (not issued in
document form)
Date of adoption of decision:
17 April 2026
Subject matter:
Deportation to Sri Lanka
Procedural issue:
None
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 A., a national of Sri Lanka born in 1985. He applied for asylum in
Switzerland, but his application was rejected. He is facing removal to Sri Lanka and claims
that his removal would constitute a violation by the State Party of articles 3, 14 and 16 of the
Convention. The State Party made the declaration under article 22 (1) of the Convention on
2 December 1986. The complainant is represented by counsel.
1.2
On 10 June 2022, pursuant to rule 114 of its rules of procedure, the Committee, acting
through its Rapporteur on new complaints and interim measures, requested the State Party
not to deport the complainant to Sri Lanka while the communication was being considered.
1.3
On 16 June 2022, the State Party informed the Committee that, in accordance with its
established procedure, the State Secretariat for Migration had requested the competent
authority to refrain from taking any steps to remove the complainant, who was therefore
assured of remaining in Switzerland pending the consideration of his complaint by the
Committee.
* Adopted by the Committee at its eighty-fourth session (13 April–1 May 2026).
** The following members of the Committee participated in the examination of the communication:
Jorge Contesse, Lorena Gonzáles Pinto, Claude Heller, Erdogan Iscan, Peter Vedel Kessing, Liu
Huawen, Maeda Naoko, Moulaye Abdallah Moulaye Abdallah, Ana Racu and Abderrazak Rouwane.
United Nations
CAT/C/84/D/1133/2022
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
12 May 2026
English
Original: French
CAT/C/84/D/1133/2022
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Facts as submitted by the complainant
2.1
The complainant is of Tamil ethnicity. He had his first direct contact with the
Liberation Tigers of Tamil Eelam at the age of between 13 and 14: he was taken by members
of the movement to a training camp, where he helped dig trenches and build fortifications.
He was an active combatant in the movement,1 just like his father and brother.2 He took part
in violent armed clashes in early 2000 and was wounded twice in April of that year: the first
time near a training camp, involving a gunshot wound from which he still bears a scar on his
leg; and the second time, a week later, when a shell exploded while he was digging for the
construction of a post for the movement.3 He was taken to hospital, where he remained
bedridden for three to four months.
2.2
The complainant’s convalescence lasted more than a year. After his partial remission,
he was sent 4 to another region where he was responsible for treating the wounded,
supervising the arsenal – uniforms, shoes, food – and maintaining the artillery. He himself
was being monitored by other employees in the medical department. As part of his paid work
at the Jakaji hospital, the complainant met many combatants from the Liberation Tigers of
Tamil Eelam.
2.3
Around 2004, after the ceasefire agreement, the complainant returned to live in his
family’s village, where he resumed his work as a fisher. In 2006, he and his friends were
taken in for questioning by officers from the Criminal Investigation Department. Their
identity cards were confiscated and they were asked to come and collect them from
headquarters. On arrival, they were stripped, searched and locked up in individual cells. The
complainant was questioned about the circumstances of his injury, but the questions were
phrased in such a way as to suggest that his comrades had informed against him. He was
violently beaten with batons and other heavy objects. Drowning techniques were also used,
as were plastic bags to simulate suffocation. After initially denying any involvement in the
movement, the complainant, after being severely beaten, finally admitted to taking part in the
fighting. He was struck in the face and chest until he spat blood. He was in so much pain
from the acts of violence that he did not immediately notice that some of his teeth were
missing.
2.4
The complainant and his friends were finally released, after their families and a priest
intervened, and were required to report to the police station every day. The complainant then
fled and lived in hiding for approximately nine months with the help of the priest, before
leaving the country. It was at this point that his father burned all documents attesting to any
connection with the Liberation Tigers of Tamil Eelam.5 The complainant fled by boat to
India, where he stayed for five years.6 He then attempted a first return to Sri Lanka at the end
of the war in October 2011. Upon his return, agents from the Criminal Investigation
Department made an official visit to his home, where only his sister was present. In February
2012, feeling that he was constantly being watched by plain-clothes officers from the
Criminal Investigation Department, the complainant left Sri Lanka again, travelling first to
Singapore and then to Malaysia, where he was recognized as a refugee by the Office of the
United Nations High Commissioner for Refugees (UNHCR). He then travelled to Indonesia,
where he was arrested and beaten by the authorities for not having valid identity documents.
1 The complainant states his code name and registration number.
2 The complainant’s father distributed supplies – weapons, food, uniforms – and smuggled goods for the
movement by boat. The complainant’s brother, enlisted as a combatant with the movement, was beaten
and left for dead on several occasions, then disappeared for good during the intense fighting that took
place in the Vanni region in 2009.
3 According to his complaint to the Committee, the complainant was injured twice in 2000, but, according
to the two conflicting versions presented to the State Secretariat for Migration, he was injured once:
according to one version, in 1998 during a bombing raid, and according to the other, in 2000 while
digging a bunker.
4 No further details provided.
5 Documents from the movement, photos, prescriptions for medication for his injuries and photos with
high-ranking members of the movement and commanders.
6 No further details provided.
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2.5
After four difficult years in exile, first in Malaysia and then in Indonesia, the
complainant registered with the International Organization for Migration (IOM) with a view
to organizing a “supervised” return to Sri Lanka. Thanks to the support of IOM, which issued
him with an emergency travel document, the complainant landed at Colombo airport on
15 January 2016. Arrested at the airport, he was questioned for several hours by the Sri
Lankan authorities, then released following the intervention of IOM.7
2.6
Approximately 18 days after the complainant’s return, officers from the Criminal
Investigation Department came to question him about the reasons for his stay in Indonesia.
The complainant fled immediately after this first visit. During a second visit, a few days later,
the officers gagged and questioned his parents. The complainant then contacted a smuggler
who arranged for him to obtain a passport, dated 10 March 2016. and organized his journey
to Europe. The process lasted several months, during which the complainant hid in various
towns. In 2017, several attempts to leave failed, but in June or July 2017, he finally managed
to leave Sri Lanka for good. After a journey of several months during which he transited
through Dubai, Mali and France, and thanks to the support of a solid network of smugglers,
the complainant arrived in Switzerland, where he lodged an asylum application on
22 November 2017.
2.7
After the complainant left, the Sri Lankan police again turned up at his parents’ home
with summonses for the complainant. On 23 April 2020, his mother and brother-in-law went
to the police to obtain a document attesting to the proceedings against the complainant. They
were threatened with arrest. The police officers stated that the complainant would be arrested
on his return, in particular because he had fled without appearing before the judge. Fearing
that his family might face reprisals, the complainant asked the Swiss authorities to undertake
investigations through the Swiss representation in Colombo, in order to ascertain whether
any proceedings had been brought against him, but no steps were taken to this end.
2.8
During the asylum procedure, the complainant produced several medical reports
confirming the presence of after-effects of a war injury to the leg, including very fine metal
fragments around the left knee joint, associated with degenerative disorders, which caused
pain and impaired function. He was interviewed on 5 December 2017 regarding his personal
details and again on 5 March 2019 regarding his reasons for claiming asylum.8
2.9
On 26 March 2020, the State Secretariat for Migration rejected the complainant’s
asylum application. It noted that the complainant had given two different versions of events,
containing numerous contradictions regarding the date on which he had left Sri Lanka and
the duration and locations of his stays. For example, according to the first version, the
complainant had lived in hiding in Sri Lanka from 2006 to 2012, whereas, according to the
second version, he had lived in India from 2007 to 2011. His grounds for asylum also differed
from one hearing to the next: at his first hearing, the complainant had stated that he had never
worked or collaborated with members of the Liberation Tigers of Tamil Eelam, unlike his
father, whereas at his second hearing, he had stated that he had worked and collaborated with
the movement. When the discrepancies in his statements were pointed out to him, the
complainant did not provide any valid explanation.
2.10
Furthermore, the State Secretariat for Migration found it implausible that, all of a
sudden, the Sri Lankan authorities would have questioned the complainant about his alleged
activities within the movement, more than 16 years after the events. Moreover, it noted that,
following his interrogation upon his return from Indonesia, the complainant had been
released and had lived freely in Sri Lanka for 14 months without the authorities causing him
any problems. However, if the complainant had really been in the sights of the authorities,
they would not have hesitated to arrest him and initiate proceedings against him. Yet the
complainant was never detained for more than one day. In addition, the stamp certifying the
authentication of his birth certificate was affixed to the document on 25 September 2017 even
though, according to both versions of the facts, he had supposedly already left Sri Lanka,
which the State Secretariat for Migration considered highly unlikely.
7 No further details provided.
8 The Dublin procedure was initiated between 14 December 2017 and 11 September 2018.
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2.11
The State Secretariat for Migration pointed out that the complainant had legally
obtained a passport in March 2016, when the authorities were already after him, which is
contrary to all logic. Similarly, the complainant was able to leave the country legally by air
with a valid passport, which would not be possible if he were actually wanted by the
authorities. Moreover, the complainant was able to stay in Dubai for two months at the end
of 2016 on a visa obtained lawfully and in person, which is impossible when a search for a
person is under way. After all, if the complainant were really wanted and threatened by the
Government of Sri Lanka, his family would probably have encountered difficulties following
his departure from the country, which does not appear to be the case here. According to the
complainant’s own statements, the authorities reportedly visited his home immediately after
his departure in 2017 and did not bother his parents again afterwards.
2.12
Furthermore, the State Secretariat for Migration noted the complainant’s statements
that he had leg problems and was undergoing treatment that involved applying an ointment.
The medical reports also confirmed that no other treatment was being considered in
Switzerland.
2.13
The complainant underwent several operations in 2021, which led to a severe infection
of his leg and resulted in extensive follow-up care and several hospitalizations. The
possibility of leg amputation was considered if the pain persisted, a prospect that contributed
to a deterioration in his mental health. Psychologically, the complainant suffers from severe
post-traumatic stress disorder, with a mixed dissociative disorder and a severe depressive
episode with psychotic symptoms. Furthermore, he suffers from mental and behavioural
disorders linked to the use of multiple drugs and other psychoactive substances. Moreover,
he takes his medication haphazardly, sometimes taking several times the recommended dose,
which results in severe and potentially dangerous sedation.
2.14
In addition to his numerous hospitalizations and orthopaedic operations, the
complainant was hospitalized three times in a psychiatric hospital between May 2020 and
September 2021, each time for approximately two and a half weeks. He suffers from liver
and kidney failure, which significantly reduces the treatment options available for the
inflammation and infection in his leg. He also complains of pain in his testicles as a result of
the ill-treatment he suffered in Sri Lanka. The complainant’s precarious living situation and
overall medical conditions are sources of great suffering.
2.15
On 18 January 2022, the Federal Administrative Court rejected the complainant’s
appeal as manifestly unfounded. It noted that the complainant had produced two psychiatric
reports, in letters dated 19 June 2020 and 30 June 2021, and that the State Secretariat for
Migration could not therefore have been aware of his psychological problems when it had
made its decision. The Court then revealed that, in his appeal, the complainant had presented
yet a third version of his life story. In particular, he had stated that he had left Sri Lanka in
2017, following repeated persecution and numerous beatings by government forces and an
initial arrest in 2011 for high treason on the grounds that he had allegedly provided logistical
assistance to the rebels between 2000 and 2011. The Court considers, contrary to the
complainant’s view, that the numerous versions of the facts differed on crucial aspects of the
asylum application, rather than minor details, and that these discrepancies could not be
explained by his psychological problems.
2.16
In addition to the inconsistencies in the complainant’s account of his life story and his
collaboration with the Liberation Tigers of Tamil Eelam, the Federal Administrative Court
found that the fact that, after his departure, he had obtained a passport, which enabled him to
leave the country legally, a visa and authentication of a birth certificate defied all logic and
made his claims that he was wanted even less credible. In addition, the Court wondered why
the Sri Lankan authorities would suddenly want to question the complainant about events
that happened years ago, considering that the war had ended more than 12 years previously.
2.17
From a medical point of view, the Federal Administrative Court noted that the
numerous medical reports indicated that the complainant suffered from a physical injury to
his left knee, which did not require any current treatment, and, in terms of mental health, a
severe depressive episode with no psychotic symptoms, post-traumatic stress disorder, mixed
dissociative disorder, a moderate mental impairment with no mention of behavioural
disorders, and mental and behavioural disorders related to the use of multiple drugs and other
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psychoactive substances with harmful effects on health. However, the Court pointed out that
basic medical care was available free of charge in the complainant’s home province,
including treatment for psychiatric disorders, even if this treatment did not reach the high
standard that exists in Switzerland. It also noted that psychiatric treatment had not been
provided until July 2019, 20 months after the complainant’s arrival in Switzerland.
2.18
Between late January 2022 and late November 2023, the complainant was admitted
to hospital on three occasions, on a voluntary basis, to be protected from suicidal thoughts.
2.19
On 10 December 2024, the complainant submitted an application for review based on
a medical report dated 1 October 2024 attesting to his physical injuries.
2.20
On 19 December 2024, the State Secretariat for Migration rejected the application
because the formal requirement of a 30-day period following the discovery of the grounds
for review had not been met. Moreover, it noted that the complainant had raised an issue that
had already been addressed in ordinary asylum procedures. The complainant did not lodge
an appeal.
Complaint
3.1
The complainant claims that his deportation to Sri Lanka would constitute a violation
of his rights under articles 3, 14 and 16 of the Convention. He argues that the Swiss authorities
did not take due account of the risk factors he sets out and that the assessments of these factors
were arbitrary and constitute a denial of justice. Furthermore, the complainant did not have
the right to a thorough and impartial examination of his allegations by the Federal
Administrative Court, the only judicial body, as his appeal was rejected by a single judge
after a summary analysis and without any exchange of written pleadings. This constitutes a
serious breach of the requirements of the Convention.9
3.2
The complainant is at high risk of being identified by the Sri Lankan authorities as an
active member of the Liberation Tigers of Tamil Eelam if returned to his country of origin.
He was arrested in the past by the Sri Lankan authorities and confessed, under torture, that
he was involved with the movement. Furthermore, given that he had clearly visible scars on
his body, that he spent many years abroad after having disappeared in Sri Lanka and that he
submitted an asylum application in Switzerland in 2017, he would undoubtedly be arrested
again upon his return to the country and risk being targeted by the Sri Lankan authorities
once more and subjected to acts of torture and ill-treatment. In addition, the political changes
in 2019 have worsened the situation of the Tamils, a situation to which the United Nations
High Commissioner for Human Rights has drawn the attention of the international
community.10
3.3
The complainant’s involvement as a combatant in the Liberation Tigers of Tamil
Eelam cannot validly be disputed in the light of his life story, in particular his family’s
involvement in the movement, his ethnic and geographical origin, his recruitment when he
was a young boy, the years he spent fighting and serving with the Tamil Tigers and, in
particular, the serious physical and psychological after-effects, namely a war wound to his
left leg, a scar from a gunshot wound to his right leg and severe post-traumatic stress disorder
and other concomitant conditions.
3.4
According to the complainant, the Swiss authorities accused him of giving divergent
and contradictory accounts without taking into account either the plausibility of the facts in
the Sri Lankan context, or the complainant’s proven psychological inability to reconstruct
the traumatic events spontaneously and coherently, or the objective evidence attesting to his
status as a victim of torture and ill-treatment: war wounds and scars, psychological and
physical after-effects of the ill-treatment suffered, refugee status granted by the UNHCR
office in Malaysia or assisted return by IOM.
3.5
The complainant explained that it was only during the second hearing on the grounds
for asylum that he mentioned, for the first time, his career as a fighter for the Liberation
Tigers of Tamil Eelam and that, on the recommendation of his compatriots, he had said
9 Agiza v. Sweden (CAT/C/34/D/233/2003), para. 13.7.
10 A/HRC/46/20.
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nothing when he arrived in Switzerland for fear of being labelled a terrorist by the Swiss
authorities. In the complainant’s view, the mere belated statement of facts does not justify a
finding that the grounds for asylum are implausible.
3.6
The complainant argues that the State Party took no account of the serious mental
health conditions from which he suffers in connection with the traumatic events he
experienced in Sri Lanka. It relied primarily on the chronological inconsistency of the
complainant’s statements to reject the plausibility of the entire account. However, in the case
of a victim of torture, a consistent account cannot be required and the State Party should
refrain from following a standardized credibility assessment process to determine the validity
of a non-refoulement claim.11 Given the complainant’s mental problems and the fact that the
events occurred more than 20 years ago, establishing the facts is clearly complex. The
complainant’s ability to present the facts clearly and coherently is impaired.
3.7
The complainant states that he is at risk of retraumatization, which constitutes
treatment contrary to articles 3 and 16 of the Convention. In fact, the State Party did not take
proper account in its decision of the information provided by the complainant regarding his
state of health or the severity of his injuries. However, the difficulties in obtaining access to
specialized care amount to a real and serious danger and, consequently, humiliating treatment
that shows a lack of respect for the complainant’s dignity in the event of his return to Sri
Lanka.12 It appears from the file that no personalized and in-depth assessment was made of
the risk that the complainant would not have access to specialized care in Sri Lanka, as the
State Party was satisfied with general information based on the assumption that therapies for
traumatized people and medicines are available in Sri Lanka, which is not the case in this
instance.
3.8
Moreover, the complainant points out that there is no rehabilitation programme for
victims of torture and ill-treatment in Sri Lanka. As a victim of torture requiring specialized
care, the complainant would not have access to rehabilitation services if returned, in violation
of article 14 of the Convention.
State Party’s observations on the merits
4.1
On 9 December 2022, the State Party submitted its observations on the merits,
reiterating the arguments made by the Swiss asylum authorities. The State Party points out
that, during the asylum procedure, the complainant had produced three different and
contradictory versions of his life story and very divergent versions of his links with the
Liberation Tigers of Tamil Eelam. At first, he stated that he had never been part of or helped
the Liberation Tigers of Tamil Eelam, but that his father had helped this movement. During
the second hearing, he claimed to have worked for them, then, after his asylum application
was rejected, in his appeal to the Federal Administrative Court, he claimed to have been an
active member of the movement.
4.2
The State Party notes that the psychiatric reports of 15 May 2020 and 14 June 2021
mention yet another version of events and recalls in this context that statements made during
psychiatric consultations do not constitute evidence of the veracity of the grounds for asylum.
The doctor’s objective is to treat the patient, not to determine the truth of the alleged facts by
analysing the credibility of the patient’s statements. Moreover, the medical findings do not
constitute proof of the circumstances in which any injuries may have occurred and therefore
of the person’s grounds for asylum. Thus, as the facts of the case were not considered
plausible and the complainant’s state of health may have had other causes, a causal link
cannot be established between the complaints described and the alleged grounds for asylum.
Consequently, the complainant cannot be regarded as a victim of torture within the meaning
of article 14 of the Convention, which is not applicable in the present case.
4.3
The State Party acknowledges that the human rights situation in Sri Lanka is a cause
for concern in many respects,13 but points out that this situation and the risk of being subjected
to torture in the event of return has already been analysed in depth by the Federal
11 Committee against Torture, general comment No. 4 (2017), para. 42.
12 The complainant cites A.N. v. Switzerland (CAT/C/64/D/742/2016), without specifying the paragraph.
13 See CAT/C/LKA/CO/5.
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Administrative Court in a landmark decision.14 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 has attracted
the attention of the Sri Lankan authorities. Indeed, he did not make a credible claim that he
had been exposed to persecution before leaving Sri Lanka.
4.4
As for the complainant’s medical situation, the State Party considers that his state of
health does not preclude his return to Sri Lanka, since he would have access to appropriate
healthcare for the alleged injuries. As noted by the domestic authorities, basic medical care
is available free of charge in his home province.
4.5
With regard to the injury to the leg from which the complainant is suffering, the State
Party notes that, according to the latest medical report in the file, dated 15 November 2021,
eight months after surgery on his left knee, he was still experiencing episodes of oedema and
effusion. The pain was tolerable without the use of anti-inflammatory analgesics and,
although he complained of a lack of strength when climbing stairs, the complainant walked
without limping. Overall, the evaluation was considered satisfactory. The complainant did
not submit any new medical information on this subject. In view of the medical information
available and in particular the favourable assessment of the complainant’s knee injury, there
is reason to believe that he would have access to adequate treatment for his injury in the event
of return.
4.6
With regard to the complainant’s mental health problems, the most recent information
in the file is the discharge letter from the Mental Health Network of Fribourg dated
21 September 2021, drawn up after the complainant was hospitalized between 3 and
20 September 2021. This was the third time the complainant had been hospitalized, on a
voluntary basis, to prevent him from committing self-harm. During the admission interview,
the complainant reportedly focused on the difficulties he had encountered with other residents
at the hostel to which he had recently moved. He reportedly took too much of his medication
to help him sleep, consumed alcohol and complained of knee pain. According to the medical
information on file, the complainant is undergoing psychotherapy and taking medication,
including antidepressants, antipsychotics, benzodiazepines, painkillers and sleeping pills. He
did not include any current information about his mental state or treatment in his
communication.
4.7
Contrary to the complainant’s assertion, the State Party maintains that psychological
damage can be treated in the Northern Province, in particular in Jaffna, where the
complainant last lived. Treatment is available, for example, in the Teaching Hospital in
Jaffna, the Base Hospital in Chavakachcheri and the Base Hospital in Point Pedro. The Jaffna
district is classified as having comprehensive mental health services, which is the highest
level in this area. It should be recalled, in this context, that public healthcare is free in Sri
Lanka. In addition, the non-governmental organization Shanthiham – Association for Health
and Counselling, based in Jaffna, provides psychological support for people suffering from
post-traumatic stress disorders linked to armed conflict. Contrary to the complainant’s
assertions, psychiatric care and support services specifically for traumatized people are
available in Sri Lanka, and in Jaffna in particular. This would give the complainant access to
appropriate treatment for his mental health problems in the event of his removal.
4.8
Furthermore, the State Party argues that, when the complainant describes the Federal
Administrative Court’s judgment as arbitrary, he does not provide any convincing evidence
in support of this accusation. If the judgment was handed down by a single judge, it bears the
approval of a second judge. Although relatively succinctly formulated, it nevertheless runs
to 16 pages and takes account of all the relevant facts of the case. In particular, in its
judgment, the Court gave detailed consideration to the mental health problems diagnosed in
the complainant, the medication prescribed for his conditions and even the information
obtained by telephone by his representative. Clearly, the complainant’s concern in this
respect is unfounded. Furthermore, contrary to what the complainant appears to believe,
14 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
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procedural shortcomings cannot be inferred from the fact that the assessment of the domestic
authorities differs from that put forward by the complainant.
Complainant’s comments on the State Party’s observations
5.1
On 26 January, 24 July and 23 December 2024, the complainant submitted his
comments. He refers to the current economic situation and humanitarian crisis in Sri Lanka
to support his claim that access to healthcare is not ensured there.15 He cites his mental and
physical health, given that he has been staying in a reception centre with medical support
since 22 December 2021 and receives ongoing medical and social support. He is surrounded
by care assistants, who help him with daily tasks and activities. He is still suffering from
severe leg pain, which prevents him from moving around properly. He also mentions pain
and swelling in his testicles, which he attributes to the ill-treatment he suffered at the hands
of officers of the Criminal Investigation Department.
5.2
The complainant states that, for reasons linked to his unstable mental health and his
experiences, it is not possible for him to recount what he went through in Sri Lanka in a
chronologically and factually coherent manner, as would be expected of him during the
asylum procedure. He points out that he has moderate mental impairment and several
disabling mental illnesses that impair his ability to recall and reconstruct events in a coherent,
chronological and comprehensible manner. The Swiss authorities should have taken account
of these limitations and adopted a more flexible and specific approach to assessing
plausibility, which they did not do in this case.16
5.3
In the complainant’s view, where there is evidence of harm, it is for the State Party to
demonstrate that there is no link between the harm to the complainant’s health and the reasons
for flight that he cited. However, the State Party merely denies any causal link, without
providing convincing reasons or putting forward any alternative argument that could explain
and take into account the established medical facts.
5.4
The complainant reiterates his argument that his case was not examined in depth,
either by the first instance authority or by the only competent judicial authority in
Switzerland, namely the Federal Administrative Court. The judgment of 18 January 2022
was delivered by a single judge – and not by a panel of judges – who dispensed with an
exchange of written submissions, despite the complexity of the issues raised in the appeal
brief, the four additional submissions made during the two years of appeal proceedings and
the numerous updated medical reports in the file. It is therefore incorrect to consider that the
single judge, who is otherwise renowned for making this type of decision, carried out a full
and diligent examination of the case.
5.5
The complainant criticizes the hearing on the grounds for asylum, which took place
on 5 March 2019, between 9.50 a.m. and 4.10 p.m., as “surprisingly brief”. The
complainant’s membership of the Liberation Tigers of Tamil Eelam, which was raised at the
end of the hearing, should have led the authorities to conduct further medical investigations
or, at the very least, to summon the complainant for a further hearing, as provided for by law.
By hastily concluding that the statements were implausible, despite indications that the
person was vulnerable, the State Party failed to fulfil its obligation to independently and
rigorously examine allegations of torture and treatment contrary to the provisions of the
Convention.
5.6
For the complainant, there is no doubt that, as a Tamil and a person who has been
tortured by the authorities, is identifiable as a combatant owing to his scars and has lived in
Switzerland for a prolonged period, he has, according to Swiss and international
jurisprudence, a profile that places him at risk of being subjected to torture and ill-treatment
if he were returned to Sri Lanka. Consequently, the State Party has violated articles 3 and 16
of the Convention.
15 See in particular Swiss Refugee Council, Sri Lanka : accès à des soins psychiatriques et de
réhabilitation à Jaffna pour les victimes de la torture, 21 March 2024.
16 A.A. v. Sweden (CAT/C/72/D/918/2019), para. 8.11.
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5.7
The complainant states that he is unable to live independently and his mental health
condition requires ongoing support to carry out basic daily tasks. He is entirely dependent on
the institutional support put in place and the help of his loved ones, whether in carrying out
tasks associated with day-to-day care and hygiene or in organizing more extensive care
requiring the involvement of external professionals. He argues that his health problems are
such that returning him to Sri Lanka – where he would be denied access to the necessary
medical care – would lead to a deterioration in his health so serious that it would endanger
his life and would in itself constitute a violation of articles 3 and 16 of the Convention.17
5.8
The complainant claims that he is entitled to rehabilitation within the meaning of
article 14 of the Convention as a war-wounded person and a victim of torture. However, the
specific care needed to rehabilitate victims of torture and ill-treatment is not available in Sri
Lanka. In accordance with the Committee’s practice,18 he claims that his removal to Sri
Lanka would effectively deprive him of access to the care required by his state of health and
of any possibility of effectively exercising the rights arising from article 14 of the
Convention. He considers that the State Party should have carried out a personalized and
in-depth risk assessment rather than relying on general information or on the assumption that
therapy for traumatized persons is available or medication is accessible in Sri Lanka.
5.9
In addition, the complainant states that, given his fragility as a victim of torture and
the conditions of life in Sri Lanka to which he would be exposed if returned, namely the
inaccessibility of rehabilitation services, the threshold of severity as defined by article 16 of
the Convention for cruel, inhuman or degrading treatment would be reached. He therefore
argues that deporting him to Sri Lanka would constitute, in itself, degrading treatment within
the meaning of article 16 of the Convention and would also be contrary to the principle of
non-refoulement.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
6.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. The Committee notes that, in the present case,
the State Party has not contested that the complainant has exhausted all available domestic
remedies. Nor has it contested the admissibility of the complaint.
6.3
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 3.19
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.20 In the absence
of further explanations, the Committee considers that that aspect of the communication is
insufficiently substantiated.
17 European Court of Human Rights, Paposhvili v. Belgium, Grand Chamber, application No. 41738/10,
judgment, 13 December 2016.
18 K.R. v. Switzerland (CAT/C/76/D/1018/2020); A.N. v. Switzerland; and Harun v. Switzerland
(CAT/C/65/D/758/2016).
19 Harun v. Switzerland, para. 8.3.
20 N.A. v. Switzerland (CAT/C/79/D/1096/2021), para. 8.3; and Harun v. Switzerland, para. 8.7.
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6.4
In the absence of any other obstacle to the admissibility of the communication, the
Committee proceeds to its consideration of the merits of the claims submitted by the
complainant under article 3 of the Convention.
Consideration of the merits
7.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
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 would currently face a risk of torture if returned to Sri Lanka.21
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 personally faces a foreseeable and real risk of being subjected to torture.22 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.23
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 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 notes the
complainant’s assertions that he was detained, interrogated and tortured in 2006 and that the
Sri Lankan authorities were looking for him when he left the country. Lastly, it notes the
complainant’s claim that his removal to Sri Lanka would expose him to retraumatization and
would prevent him from receiving medical and psychiatric treatment.
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
inconsistencies and expressed doubts as to their credibility. The Swiss authorities noted that
the complainant had been able, in March 2016, to legally obtain a passport and leave his
21 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
22 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.
23 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
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11
country with this document by air, that, furthermore, at the end of 2016, he lawfully and
personally obtained a visa to stay in Dubai and that, in September 2017, his birth certificate
had been authenticated while he was allegedly wanted by the Sri Lankan authorities. These
facts show that he was not wanted by the authorities and do not suggest that he faces a
foreseeable and present risk of being subjected to treatment contrary to the Convention in the
event of removal.
7.7
However, the Committee notes that, even if it were to accept the claim that the
complainant was subjected to acts of torture and ill-treatment in the past, the question is
whether he remains, at present, at risk of torture in Sri Lanka in the event of his forcible return
there.24 The Committee also notes that, according to its jurisprudence, the onus is generally
on the complainant to make an arguable case.25 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 also did not demonstrate
that his family was currently being persecuted owing to his past activities.
7.8
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.
7.9
Furthermore, the Committee notes the complainant’s allegation that he was deprived
of his right to a thorough and impartial examination of his claims by the Federal
Administrative Court, since his appeal was rejected by a single judge after a summary
analysis and without any exchange of written pleadings. However, the Committee notes that
the possibility of a single judge ruling on a case with the agreement of a second judge is
specifically provided for under Swiss law26 and considers that the complainant has not shown
that he was placed at a legal disadvantage as a result, given that he was able to make
submissions and present his arguments, with the assistance of counsel, and that the judge had
properly considered his arguments.
7.10
Lastly, the Committee notes that much of the complainant’s reasoning focuses on his
current state of health and the possibility of receiving adequate treatment in Sri Lanka. In this
respect, the Committee recalls that the principle of non-refoulement does not confer a right
to remain in a country solely on the basis of a difference in health services that may exist
between the State of origin and the State of asylum, or to continue medical treatment in the
State of asylum, unless such treatment is essential for the life and would not be available and
accessible in the State of return. In the present case, the Committee notes that, on the basis
of the information in the case file, the necessary treatment for the complainant’s physical and
psychiatric conditions is available and accessible in Sri Lanka. While the Committee takes
note of the reports produced by the complainant on the medical situation in Sri Lanka, it
considers that the complainant has not demonstrated that it is impossible to have access to
the necessary treatment.
8.
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.
24 N.K. v. Switzerland, para. 7.10.
25 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.
26 Asylum Act, art. 111 (e).
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9.
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.