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.26-07109 (E) 230626 230626
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1176/2023*, **
Communication submitted by:
V.R. (represented by Centre suisse pour la
défense des droits des migrants and subsequently
by Caritas Internationalis)
Alleged victim:
The complainant
State Party:
Switzerland
Date of complaint:
1 March 2023 (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 March 2023 (not issued
in document form)
Date of adoption of decision:
24 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 V.R., a national of Sri Lanka born in 1982. 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 provided for in article 22 (1) of the
Convention on 2 December 1986. The complainant is represented by counsel.
1.2
On 10 March 2023, 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.
* 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 Singh, 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/1176/2023
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
4 June 2026
English
Original: French
CAT/C/84/D/1176/2023
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1.3
On 14 March 2023, 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, so that he could be
assured of remaining in Switzerland pending the consideration of his complaint by the
Committee.
Factual background
2.1
The complainant is of Tamil ethnicity. In 2007, he was forcibly recruited by the
Liberation Tigers of Tamil Eelam (LTTE). Since he had not undergone military training, he
had to work for an entity that manufactured orthopaedic prosthetics. A year later, when
conflicts with the Government arose, the complainant had to leave the area and returned to
his home town. In late 2008, he began working for an opposition party: he engaged in political
campaigning by putting up posters for the party. His brother-in-law also worked for that
party. On 3 May 2009, his wife telephoned him to say that four people in plain clothes had
come to their home while he was away and had asked questions about him and his
brother-in-law. His brother-in-law has allegedly been missing since that day.1
2.2
His wife then begged him not to come home. Fearing for his safety, the complainant
sought refuge at his uncle’s home in another district. A few days later, his wife reported her
brother’s disappearance to the police. That night, two people came to the family home and
told her that the complainant would go missing if she did not withdraw her report. The same
two people came back to the family home two days later to see whether the complainant had
returned. His wife then joined him at his uncle’s house, together with their child. They lived
there from 2009 to 2010. During that period, people came to his home several times to
question his family. In 2010, the complainant moved to another district, where he worked at
a prosthetics company until 2014. During that time, the visits to his former home continued.
2.3
On 26 July 2014, the complainant returned to his home town to take a job as a
prosthetist in a hospital. On 27 July 2014, he was approached in the canteen by four people
who ordered him to leave. He was forced into a minibus that was parked in front of the
hospital. One of the people struck him violently in the face with a metal object, leaving scars
that remain visible on his right eyebrow and right cheek and above his mouth on the
right-hand side. Those people then took him to an unknown location where he was
interrogated and tortured: he was beaten severely and repeatedly until he admitted to having
worked for LTTE and more specifically, for the unit that manufactured prosthetics. He was
then dropped off in front of his home and told that he must sign in at the Criminal
Investigation Department every Friday. He was forbidden from seeking hospital treatment.
After spending three weeks at home unable to move because of the abuse he had suffered, he
returned to work at the hospital. That very evening, some people came to his home to ask
why he had not signed in every Friday as required. They ordered him to report to their offices
the following afternoon. Whenever he travelled anywhere, soldiers would question him about
his ties to the opposition party and would beat him.
2.4
In November 2015, the complainant failed to sign in as required. On 17 November
2015, four people came to his home and asked him to follow them on a motorcycle. His
pregnant wife was thrown to the ground2 and screamed as she tried to intervene. The attackers
fled when the neighbours arrived. The complainant failed to sign in at the Criminal
Investigation Department for three or four weeks after his child was born. When he returned
there, he was tortured,3 beaten and threatened with death if he did not strictly comply with
the obligation to sign in.
2.5
In October 2016, the complainant took on extra work in another town. As a result, he
was unable to sign in for a few weeks. When he returned to the family home in November
2016, he saw a white van outside, and some people came to forcibly take him away. His
young son, who was standing next to him, received a backhand blow and fell to the ground.
1 The complainant asserts that, according to the villagers’ accounts, his brother-in-law was arrested,
handcuffed and abducted by officers of the Criminal Investigation Department.
2 According to the complainant, his wife’s fall caused her waters to break and she gave birth three days
later.
3 No details provided.
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3
The soldiers forced the complainant to sign documents written in Sinhalese and to report to
the Criminal Investigation Department the following day. Two weeks later, at their offices,
the soldiers told him that he had signed a document confirming his ties to an armed group.
2.6
After selling his land in October 2018, the complainant contacted a smuggler and, on
the smuggler’s instructions, travelled to Colombo in November 2018 to obtain a passport.
About a month later, he returned to the family home. That day, he was near his home when
a minibus pulled up beside him. He was ordered to get in and was taken to a camp where he
was questioned about the reason for his stay in Colombo and was severely beaten with a stick.
When he was released, he went straight to his uncle’s house. On 28 January 2019, after being
contacted by the smuggler, he travelled to Colombo and flew from there to Türkiye. He
stayed in Türkiye for about a year and a half4 before travelling to Italy by boat in June 2020.
He arrived in Switzerland on 5 October 2020 and applied for asylum the same day.
2.7
On 18 March 2021, the State Secretariat for Migration rejected the complainant’s
asylum application on the basis that his statements, particularly those regarding the Sri
Lankan authorities’ interest in him and the measures they reportedly took against him on
account of his political profile, were implausible. The State Secretariat found it surprising
that the Sri Lankan authorities had continued to monitor the complainant for more than four
years following the initial interrogation, during which he had told them the whole truth about
his work for LTTE and the opposition party. Furthermore, for four years, the complainant
was required to sign in at the premises of the Criminal Investigation Department, where he
was routinely interrogated and beaten. Since the officers had had ample opportunity to
question the complainant at those times, the State Secretariat considered it unlikely that they
had gone to his home on several occasions to forcibly take him away for questioning.
Furthermore, if the authorities, upon completing their investigations, had been seriously
concerned that the complainant posed a risk, they would have taken drastic measures instead
of releasing him after each encounter.
2.8
The State Secretariat for Migration was surprised that the complainant had spent more
than four years in Sri Lanka following his arrest in July 2014, as it seems difficult to believe
that he would have waited so long before deciding to leave the country, if he knew that he
was wanted and feared for his safety. The State Secretariat took note of a medical report dated
8 March 2021, submitted by the complainant, attesting that he was suffering from
after-effects and trauma consistent with his allegations of ill-treatment. However, the State
Secretariat recalled that, according to case law, a medical diagnosis does not in itself establish
the actual causes of trauma or the circumstances in which it occurred and constitutes only
one piece of evidence among others that must be taken into account when assessing the
credibility of allegations of persecution. While it is the responsibility of a general practitioner
or a psychiatrist to determine the existence of trauma, such a determination does not establish
the causes and circumstances of the trauma. This question does not concern the facts of the
case but rather their interpretation; it is a question of law that the authority is free to decide
upon. The State Secretariat found that the symptoms described in the report did not in any
way explain the numerous implausible statements that it had identified.
2.9
On 13 May 2022, the Federal Administrative Court dismissed the complainant’s
appeal. The Court noted that, even though he was under investigation, the complainant had
been able to obtain a passport in his name without any difficulty in late 2018. The Court
noted that the political party for which the complainant had worked was collaborating closely
with the Sri Lankan armed forces in their fight against LTTE. In addition, among other things,
neither the complainant nor any member of his family had been a member of LTTE, the
requirement that he sign in every week was not consistent with his profile, and the Criminal
Investigation Department could easily have arrested him, had it truly wished to do so, given
his behaviour. The Court also found that the complainant had not adequately explained why
he had returned home after obtaining his passport even though he was likely to be questioned
again for having failed to sign in regularly. Furthermore, it was not plausible that the Criminal
Investigation Department would have known about his stay in Colombo without knowing the
4 No details provided.
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reason behind it. Lastly, the Court could not understand why the complainant had waited for
more than four years before leaving the country, if he had really found himself in trouble as
early as July 2014.
2.10
Regarding the complainant’s fear of being persecuted if he were to return to Sri Lanka,
the Federal Administrative Court found that his profile was unlikely to attract the attention
of the Sri Lankan authorities, since he had never been a member of LTTE, he had failed to
substantiate his claim of having suffered harm before leaving the country and he had not
engaged in any opposition activities since then. Consequently, in the absence of specific risk
factors, the scars on his body, his Tamil ethnicity and the length of his stay abroad could not
give rise to an objective fear of reprisals. In particular, the Court noted that he had not been
targeted by the authorities on account of his scars while he was in Sri Lanka. With regard to
his removal, the Court noted that the complainant would have access to the medical treatment
that he needed. It also drew the complainant’s attention to the fact that he could request
medical return assistance in the form of medicines.
2.11
On 15 June 2022, the complainant filed an application for the judgment of 13 May
2022 to be reviewed, based on two new pieces of evidence, namely two summonses from the
Sri Lankan police dated 12 August and 14 October 2021. In an interim ruling dated 30 June
2022, the Federal Administrative Court considered the two summonses and found it highly
unlikely that the Sri Lankan authorities would have summoned the complainant more than
18 months after he had left Sri Lanka in January 2019 and after issuing him with an official
passport. Since the application for review was unlikely to be successful, the Court denied the
complainant’s request for a waiver of the procedural costs. On 3 August 2022, the Court
declared his application for review inadmissible on the grounds that he had not paid the
procedural costs of 1,500 Swiss francs (SwF) within the established time limit.
2.12
On 30 November 2022, the complainant filed an application for re-examination of his
case with the State Secretariat for Migration, arguing that his mental health had deteriorated
to such an extent as to preclude his removal. He submitted two medical documents, dated
12 April 2021 and 16 November 2022, indicating that he was suffering from complex
post-traumatic stress disorder and that he had experienced a single episode of moderate
depression without psychotic symptoms. The complainant claimed that, in Sri Lanka, there
was a lack of specialized medical treatment for victims of torture and access to medicines
was limited because they were expensive and in short supply.
2.13
On 9 December 2022, the State Secretariat for Migration noted that the complainant’s
health had deteriorated on account of the stress caused by the rejection of his asylum
application. His state of health did not preclude his removal, since the necessary medical care
and medicines remained available in his home town, despite the difficulties caused by the
economic and health crisis in Sri Lanka. The State Secretariat noted, in particular, that a
hospital in the complainant’s town had a specialized psychiatric unit that was headed by a
qualified psychiatrist and was operating normally. Furthermore, the medicines that the
complainant was taking were available in Sri Lanka, as were alternative sleeping pills. With
reference to the case law of the European Court of Human Rights, the State Secretariat
emphasized that the risk that the complainant’s health would deteriorate further or even that
he might attempt suicide could not serve as the basis for ordering an alternative to removal,
provided that the authorities responsible for carrying out the removal took specific measures
to prevent such things from occurring. The complainant did not lodge an appeal.
2.14
On 14 July 2023, the complainant filed a second application for his case to be
re-examined, once again arguing that his physical and mental health had deteriorated and that
there was a lack of medical care and rehabilitation for victims of torture in Sri Lanka. On
18 August 2023, the State Secretariat for Migration rejected the application, explaining that
the complainant’s physical and mental health problems could be treated in Sri Lanka,
including at the hospital in his home town. 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 asserts that neither the State
Secretariat for Migration nor the Federal Administrative Court have called into question his
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health problems, the diagnoses made by doctors in Switzerland in medical reports issued by
institutions specializing in the care of victims of torture and war, or even his proven ties to
LTTE. However, the national authorities have denied that there is any causal link between
his injuries and the grounds for his asylum application, a position that seems untenable given
the severity of the abuse that he suffered, abuse of the kind that is inflicted by torturers on
their victims against their will. After all, it is not customary to dislocate one’s own arm or to
inflict three scars on one’s face with a blunt object.
3.2
The complainant asserts that the Federal Administrative Court refused to examine the
new documents that the complainant received after the Court had handed down its judgment
and that he submitted in support of his application for review. According to the complainant,
these documents demonstrate that he is still being persecuted and that he clearly remains a
person of interest to the Sri Lankan authorities, despite the time that has elapsed since he fled
the country. The Court made its thorough review of his case – and specifically, of these
documents, which were critical to his asylum application – contingent on the payment in
advance of 1,500 SwF, despite the complainant’s evident and proven lack of means. The case
was therefore not thoroughly examined by the State Party,5 in violation of the procedural
aspects of articles 3, 14 and 16 of the Convention.
3.3
The complainant has been subjected to severe physical and psychological torture by
the Sri Lankan authorities on multiple occasions, as evidenced by two medical reports drawn
up by experts. According to the Committee’s general comment No. 4 (2017), having been
subjected to torture in the past constitutes an indication that the complainant is in danger of
being subjected to torture again if deported. In addition, the complainant has provided
evidence, in the form of two police summonses, that he was wanted by the Sri Lankan
authorities. This evidence was never thoroughly considered by the Swiss authorities, who
rejected his application for review after a cursory examination.
3.4
The complainant asserts that there are substantial grounds for believing that he would
be in danger of being convicted for participating in or trying to revive the Tamil separatist
movement and of being imprisoned in conditions which, given his state of health, would
constitute degrading treatment prohibited by article 16 of the Convention. Furthermore, he
has been subjected to multiple acts of torture and requires specialized care. If he were
returned to Sri Lanka, he would not have access to rehabilitation, in violation of article 14.
The State Party should have carried out a personalized and in-depth risk assessment rather
than relying on general information and on the assumption that group therapy for traumatized
persons is available and medicines are accessible in Sri Lanka. The complainant asserts that
Sri Lanka has no rehabilitation programmes for victims of torture and that healthcare workers
are reluctant to treat such victims for fear that they too will be targeted by the Sri Lankan
authorities.6
3.5
Although the Swiss authorities did not acknowledge that the ill-treatment suffered by
the complainant was politically motivated, the fact remains that the after-effects objectively
observed by medical professionals specializing in the identification of torture victims, and
the diagnoses made, are undeniably linked to severe inhuman and degrading treatment within
the meaning of the Convention. Since the Swiss authorities did not challenge the conclusions
of the medical experts or their diagnoses, it should be concluded that the complainant was
indeed subjected to treatment prohibited by the Convention.
State Party’s observations on admissibility and the merits
4.1
On 29 August 2023 and on 3 July and 18 September 2024, the State Party submitted
its observations. It considers that the complainant’s claims under articles 14 and 16 of the
Convention are not independent claims but rather form part of his allegations regarding the
violation of article 3. The State Party submits that the complainant has not demonstrated that
5 M.G. v. Switzerland (CAT/C/65/D/811/2017 and CAT/C/65/D/811/2017/Corr.1); and B.T.M. v.
Switzerland (CAT/C/75/D/972/2019).
6 Swiss Refugee Council, “Sri Lanka : accès aux traitements de réhabilitation pour les victimes de la
torture”, 1 September 2020.
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the facts he has presented raise separate issues under articles 14 and 16 of the Convention,
and hence that the allegations of violations of articles 14 and 16 of the Convention should be
declared inadmissible.7
4.2
On the merits, the State Party reiterates the arguments made by the Swiss asylum
authorities. It acknowledges that the human rights situation in Sri Lanka is worrying in many
respects 8 but points out that the Federal Administrative Court has already thoroughly
examined that situation, and the risk that a person would be subjected to torture in the event
of return, in a reference judgment,9 according to which not all returnees with a real or
supposed, present or past link to LTTE necessarily risk persecution. Only persons accused of
rekindling ethnic conflict face such a risk. The same applies to Sri Lankan nationals who
have engaged in political activities in exile. In the present case, the complainant has failed to
plausibly argue that he had attracted the attention of the Sri Lankan authorities. In particular,
neither the complainant nor any members of his family belonged to LTTE.
4.3
With regard to the medical reports intended to demonstrate the plausibility of the
complainant’s statements, the State Party notes that, according to current knowledge of the
psychology of memory, the memory retains new, striking and emotionally significant
experiences relatively well. The main details of important autobiographical events can be
remembered for a long time, meaning that it is usually possible to provide information about
them even if they took place some time ago. However, it has not been objectively proven that
a “memory” recovered during trauma therapy – that is, a collage of fragments assembled in
the course of therapy – can represent a reality that is long gone. In this context,
inconsistencies and gaps may of course arise in the statements of people suffering from
post-traumatic stress disorder. At the same time, statements that are completely illogical or
of poor quality cannot be considered to be based on actual facts. Consequently, even though
the medical documents submitted by the complainant confirm his mental health problems
and the need for medical care, they do not render all of his statements plausible. The national
authorities, including the State Secretariat for Migration in its decision of 9 December 2022,
cannot be criticized for putting these reports in context rather than simply reproducing them.
4.4
The State Party considers that its internal procedures were conducted in accordance
with the requirements set out by the Committee in paragraph 39 of its general comment
No. 4 (2017). Given that the complainant has not submitted any new evidence of relevance
to the case, it appears that he wishes to challenge the assessment of the aforementioned
evidence by the State Secretariat for Migration and the Federal Administrative Court, whose
conclusions are based on a substantive examination. In addition, the State Secretariat
analysed the complainant’s situation in detail in its decision of 18 August 2023 regarding his
second application for re-examination, which was filed more than four months after he had
submitted the present communication and his request for interim measures had been granted
by the Committee.
4.5
As for the two police summonses dated 12 August and 14 October 2021, the State
Party notes that they were examined by the Federal Administrative Court. Moreover, it is
surprising that the complainant was able to produce the originals of these summonses, given
that, usually, the original is kept at the police station and only a copy is given to the person
concerned. It is also unlikely that a form of that kind would be used directly to summon a
person for questioning. Lastly, it is hard to believe that the Sri Lankan police would have
summoned him more than a year after he had left the country and, on top of that, that they
would have specified that the summons was in connection with an investigation into terrorist
activities, thus providing him with information that was likely to deter him from appearing.
4.6
The State Party notes that the Swiss authorities are closely monitoring the situation in
Sri Lanka. To that end, they conducted a visit to the country in February 2023 and published
their findings in May 2023.10 It appears that, despite the economic crisis, the public health
7 R.K. v. Switzerland (CAT/C/75/D/951/2019), para. 6.5.
8 See CAT/C/LKA/CO/5.
9 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
10 The State Party refers to the following source: https://www.sem.admin.ch/dam/sem/en/data/
internationales/herkunftslaender/asien-nahost/lka/lka-psychiatr-versorgung-e.pdf.download.pdf/LKA-
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system is, for the most part, operating normally. In the complainant’s district, in addition to
the acute psychiatric care unit at the university hospital, there is a medium-term inpatient
psychiatric care unit, as well as numerous outpatient psychiatric care units.
4.7
As regards victims of torture and their rehabilitation, psychiatric treatment is available
through the public and private healthcare systems. While it may be difficult to talk about
war-related trauma, there are nevertheless organizations that offer specialized support to
traumatized individuals and victims of torture. In particular, Shanthiham and the Family
Rehabilitation Centre provide talking therapy and psychosocial support to such people.
Complainant’s comments on the State Party’s observations
5.1
On 27 May and 17 and 26 September 2024, the complainant submitted his comments,
in which he contests the State Party’s observations. In particular, he draws attention to new
developments, including various medical appointments and a second shoulder operation. He
argues that the State Party has not provided a convincing reason for questioning the causal
link between his allegations of torture and his health problems, nor has it put forward any
alternative hypothesis that could explain and account for the established medical findings,
that is, the after-effects, scars and trauma. In his view, if the State Party still had doubts about
his allegations of torture, it had a responsibility to order an expert assessment in accordance
with the principles set out in the Manual on the Effective Investigation and Documentation
of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul
Protocol).
5.2
The complainant contends that the State Party was wrong to conclude that neither he
nor any members of his family had ties to LTTE, since the case file showed that he had
worked for the movement in 2007 and 2008 alongside his brother-in-law, who subsequently
disappeared. In addition, the complainant was repeatedly arrested by the Sri Lankan
authorities and tortured because he was suspected of belonging to or supporting the
movement.
5.3
Lastly, the complainant maintains that, contrary to the State Party’s claims, he will
not have access in Sri Lanka to the necessary medical care, much less to the rehabilitation
that he needs as a victim of torture. 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 group therapy for traumatized persons is available and medicines are
accessible in Sri Lanka. The complainant points out that Sri Lanka is currently experiencing
the worst economic crisis that it has ever faced and that the health system has been seriously
weakened and is virtually at a standstill, with hundreds of essential medicines out of stock.
In the north of the country, the situation is even more concerning and most psychiatric
medications are in short supply.11
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.
psychiatr-versorgung-e.pdf. See also Australia, Department of Foreign Affairs and Trade, DFAT
Country Information Report: Sri Lanka (2 May 2024), available at
https://www.dfat.gov.au/sites/default/files/country-information-report-sri-lanka.pdf, para. 2.34 ff.
11 Swiss Refugee Council, “Sri Lanka : crise économique et soins de santé”, 13 July 2022, pp. 14–15.
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6.3
The Committee notes the State Party’s claim that the alleged violations of articles 14
and 16 of the Convention should be considered inadmissible on the grounds that the
complainant has not demonstrated that the facts presented raise separate issues under those
articles. The Committee also notes that the complainant considers that he has produced
sufficient evidence to show that his forced return to Sri Lanka would constitute a violation
of articles 3, 14 and 16 of the Convention.
6.4
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 autonomous claims but rather form part of his
allegations regarding his personal situation that support his claim under article 3.12 It is also
of the view that the complainant has not demonstrated that the facts presented raise separate
issues under articles 14 and 16.13
6.5
In the absence of any other obstacles to the admissibility of the communication, the
Committee proceeds with its consideration of the merits of the claims submitted by the
complainant under article 3 of the Convention.
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 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. Moreover, although past
events may be of relevance, the principal question before the Committee is whether the
complainant would currently run a risk of torture if returned to Sri Lanka.14
7.4
The Committee refers to its general comment No. 4 (2017), according to which the
risk of torture must be assessed on grounds that go beyond mere theory or suspicion.
Although the risk does not have to be shown to be “highly probable”, the burden of proof
generally falls on the complainant, who must present an arguable case establishing that he or
she faces a foreseeable, real and personal risk. 15 The Committee recalls that it gives
considerable weight to findings of fact made by organs of the State Party concerned but is
not bound by such findings and instead has the power, under article 22 (4) of the Convention,
to make a free assessment of the information available to it, taking into account all the
circumstances relevant to each case.16
12 Harun v. Switzerland (CAT/C/65/D/758/2016), para. 8.3.
13 R.K. v. Switzerland (CAT/C/75/D/951/2019), para. 6.5.
14 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
15 See, inter alia, Dadar v. Canada (CAT/C/35/D/258/2004), para. 8.4; and A.R. v. Netherlands
(CAT/C/31/D/203/2002), para. 7.3.
16 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
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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 being detained and subjected to acts of torture and ill-treatment because of his
connections to LTTE, 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 over the course of four years and
that the Sri Lankan authorities are still looking for him.
7.6
In this regard, the Committee takes note of the two summonses issued by the Sri
Lankan police, dated 12 August and 14 October 2021, which the complainant submitted as
part of his application for review. It notes that the Federal Administrative Court examined
the two summonses and found it unlikely that the Sri Lankan authorities would have
summoned the complainant more than 18 months after he had left the country and after
issuing him with an official passport. Moreover, according to the State Party, usually, the
original of a summons is kept at the police station and a copy is given to the person concerned,
whereas in this case, the complainant produced the originals; it was therefore unlikely that
these documents had been used directly as summonses. The Committee notes that the Swiss
authorities pointed out that the complainant had not been targeted by the Sri Lankan
authorities on account of his scars while he was in Sri Lanka. However, the complainant
offers no explanation that would counter any of these arguments.
7.7
The Committee notes that the State Party referred to the contradictions that the asylum
authorities had identified in the complainant’s account and to their conclusion 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 application for asylum, his two applications for
re-examination and his application for review but found inconsistencies therein and
expressed doubts as to their credibility. It further notes the Swiss asylum authorities’
argument that it is inconceivable that the Sri Lankan authorities would have continued to
monitor the complainant for more than four years following the initial interrogation, during
which he had told them the whole truth about his work for LTTE and the opposition party,
because if they had been seriously concerned that he posed a risk, they would have taken far
more drastic measures than simply releasing him after each encounter. In addition, according
to the State Party, the fact that the complainant was easily able to obtain a passport and leave
the country shows that he was not wanted by the authorities and does not suggest that he
would face a foreseeable and present risk of being subjected to treatment contrary to the
Convention if he were returned to Sri Lanka.
7.8
The Committee notes that the Swiss authorities did not dispute that the complainant
was suffering from physical after-effects. However, it notes that the complainant failed to
prove to the Swiss asylum authorities that the violence he had allegedly suffered had been
due to the action of State agents or had been committed in the circumstances he alleged.
7.9
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.17 The
Committee also notes that, according to its jurisprudence, the onus is generally on the
complainant to make an arguable case.18 In this case, it considers that the complainant has
not provided credible information to suggest that the Sri Lankan authorities are currently
interested in him because of his alleged ties to LTTE. The complainant also has not
demonstrated that his family are currently being persecuted on account of his past or present
activities.
17 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.10.
18 See, for example, N.B.-M. v. Switzerland (CAT/C/47/D/347/2008), para. 9.9; C.A.R.M. et al. v.
Canada (CAT/C/38/D/298/2006), para. 8.10; and M.A.K. v. Germany (CAT/C/32/D/214/2002),
para. 13.5.
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7.10
With regard to the complainant’s allegation that his application for review was not
thoroughly examined by the State Party since the Federal Administrative Court made its
thorough review of the case contingent on the payment in advance of 1,500 SwF despite the
complainant’s lack of means, the Committee notes that the application for review is an
extraordinary remedy.
7.11
With respect to the complainant’s 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, in itself, sufficient for it to conclude
that the complainant is personally at risk of being tortured there. The Committee notes that
the complainant had ample opportunity, during several rounds of asylum proceedings, 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
torture or inhuman or degrading treatment if he returned to Sri Lanka.
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.
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.