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.26-07110 (E)
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1189/2023**, ***
Communication submitted by:
T.S. (represented by counsel, Sophie Bobillier)
Alleged victim:
The complainant
State Party:
Switzerland
Date of complaint:
21 August 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 29 September 2023 (not
issued in document form)
Date of adoption of decision:
24 April 2026
Subject matter:
Deportation to Sri Lanka
Procedural issue:
None
Substantive issues:
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 complainant is T.S., a national of Sri Lanka born in 1972. He applied for asylum
in Switzerland, but his application was rejected. He is facing deportation to Sri Lanka and
submits that his deportation would constitute a violation by the State Party of article 3 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 29 September 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.
1.3
On 2 October 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 deport the complainant, who was therefore
* Reissued for technical reasons on 1 June 2026.
** 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.
United Nations
CAT/C/84/D/1189/2023*
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
29 May 2026
English
Original: French
CAT/C/84/D/1189/2023
2
GE.26-07110
assured of remaining in Switzerland pending the consideration of his complaint by the
Committee.
Facts as submitted by the complainant
2.1
The complainant is of Tamil ethnicity. He had to give up his studies in 1989 due to
the arrival of large numbers of soldiers following the outbreak of the conflict, and
subsequently worked as a truck driver for the Liberation Tigers of Tamil Eelam.1 In 2009, he
suffered a head injury from shrapnel and was hospitalized for a week. A month later, he was
questioned by officers from the Criminal Investigation Department and then released on the
condition that he appear for any further questioning. After his release, he worked in
agriculture.
2.2
In 2012 or 2013, the complainant resumed working for the Liberation Tigers of Tamil
Eelam, serving as a driver for R., who was receiving funds from abroad to assist war victims.
Four months before the complainant left Sri Lanka in 2015, officers from the Criminal
Investigation Department who were looking for him visited his home on three occasions. The
complainant had helped his friend R. carry out missions, and the Criminal Investigation
Department had identified him. During the officers’ first two visits, only the complainant’s
mother was at home.
2.3
Upon learning that he was wanted, the complainant went to his brother’s house in
another village to hide. He feared for his life because three people engaged in the same line
of work as R. had just been murdered. The complainant and R. then ceased their activities
and cut off all contact in late 2014 or early 2015 because there was a real risk that they would
be killed.
2.4
On 20 July 2015, when the complainant returned to his village to visit his sick mother,
the soldiers took the opportunity to arrest him and ask him R.’s whereabouts. The soldiers
subjected him to violence: they crushed his hand, dragged him along the ground, then hit him
in the ribs and beat him until he lost consciousness. The complainant was then taken to a
camp. While he was in an interrogation room at the camp, the guards beat him until he lost
consciousness. When he regained consciousness, he was in the same room, but lying on a
table and wearing only his underwear; the guards had taken off the rest of his clothes while
he was unconscious. He was then struck several times, after which the guards ordered him to
kneel on the ground and open his mouth. Under duress, he had no choice but to obey. A
soldier then put his penis in the complainant’s mouth and urinated. The guards then kicked
him until he fell to the ground, and a soldier crushed his hand with his boot.
2.5
The guards left him in the same room, in his underwear and with his wrists tied, before
returning during the night and raping him several times. The soldiers then beat the
complainant again, after which one soldier inserted a gun into his anus and threatened to
shoot if he did not admit that he was working for the Liberation Tigers of Tamil Eelam. The
soldier then removed the gun. This was repeated several times. The soldiers threatened to
shoot the complainant and “blow him to pieces”. He thought he was going to die. The
complainant never admitted to being a member of the movement. He merely explained that
he had assisted R. with the transport and distribution of goods.
2.6
The next day, the complainant was informed that he had to move to a different camp.
He took the opportunity during the transfer to escape. While the vehicle was stopped and the
soldiers were ordering coffee at a kiosk, he managed to jump out of the vehicle – which had
an open rear section – and began running. He was in the city centre, in a very busy area, so
he was able to escape without being caught. Several years later, he discovered that one of his
sisters had paid the soldiers a sum of money to secure his release, which explains why they
let him escape.2 He then went to the village chief, who offered him protection and provided
1 No further details were provided.
2 The complainant explains that this is a common practice, and that Human Rights Watch reported that
persons who were detained and tortured were not “formally released but rather allowed to ‘escape’
after a relative paid the authorities a bribe” (see Human Rights Watch, Sri Lanka: Rape of Tamil
Detainees, 26 February 2013).
CAT/C/84/D/1189/2023
GE.26-07110
3
him with accommodation. He contacted a smuggler, who helped him leave Sri Lanka on
29 July 2015.3
2.7
The complainant arrived in Switzerland on 19 August 2015 and filed his application
for asylum the same day. He was interviewed by the State Secretariat for Migration on
28 August 2015 and 31 August 2016.4
2.8
On 5 January 2018, the State Secretariat for Migration rejected the complainant’s
asylum application, finding that his statements – particularly those regarding the problems
he claimed to have encountered as a result of assisting a man named R. – did not meet the
standard of plausibility. During his first hearing, the complainant stated that he had been
suspected of receiving funds from the Liberation Tigers of Tamil Eelam from abroad,
whereas during his second hearing, he clarified that it was R. who had been suspected, not
him. Furthermore, during his second hearing, the complainant stated that officers from the
Criminal Investigation Department had visited his home on three occasions, whereas during
the first hearing he had said that he had not had any problems with the Sri Lankan authorities
between 2009 and his arrest on 20 July 2015. During the second hearing, the complainant
stated that he had ceased his activities with R. at the end of 2012, whereas during the first
hearing, he said that he had ceased those activities at the end of 2014. Furthermore, he was
unable to provide R.’s full name or indicate whether he was acting alone or on behalf of an
organization. During the two hearings, when asked about the village where R. lived, the
complainant gave two different names.
2.9
The State Secretariat expressed doubts regarding the complainant’s claims that he had
not retained the services of a lawyer and had even declined to speak with the lawyer his sister
had contacted to explain to the Criminal Investigation Department that his involvement with
R. was not in any way reprehensible, and had waited until he was in Switzerland to do so.
The State Secretariat then concluded that the complainant’s account – that he had escaped on
21 July 2015, while soldiers were taking him to another camp – was not credible. It was not
plausible that he had been left alone, with his hands untied, in the open rear section of a
vehicle. The State Secretariat also noted that the complainant had contradicted himself on
that point, since, during his initial hearing, he had stated that he had been left unattended with
his hands tied. It also found that the crush fracture of the phalanges of the complainant’s left
hand, as described in a medical report dated 6 October 2016, had occurred under
circumstances other than those alleged by the complainant. It concluded that the complainant
had not left Sri Lanka under the circumstances he alleged. Furthermore, it noted the lack of
a temporal connection between the complainant’s head injury and his interrogation in
July 2009, on the one hand, and his departure from the country in July 2015, on the other.
2.10
The State Secretariat then examined whether the complainant had a well-founded fear
of being subjected to persecution if returned. It noted that, under its current practice, the fact
that a person was of Tamil ethnicity, that he or she had left the country and that criminal
proceedings had been initiated for illegal departure from the country were not sufficient
grounds to conclude that there was a risk of persecution in the event of return. It maintained
that the fact that the complainant had worked as a driver for the Liberation Tigers of Tamil
Eelam until 2009 in connection with their commercial activities should not lead the Sri
Lankan authorities to regard him as a person who had maintained particularly close ties with
the movement. In this regard, the State Secretariat noted that, after being questioned by the
Criminal Investigation Department in July 2009, the complainant had been released on the
sole condition that he remain available for a possible further questioning. Consequently, the
State Secretariat did not recognize that there was a well-founded fear of persecution.
2.11
Lastly, the State Secretariat noted that the reports included in the file documented
several medical conditions, including a severe allergy to chlorhexidine and mental health
issues, but determined that the complainant could receive adequate healthcare in Sri Lanka.
According to information gathered by the Swiss Embassy in Colombo, there was a hospital
in Cheddikulam – the Base Hospital – that provided a full range of general healthcare
3 He travelled to Dubai and made three stops in countries whose names he cannot remember.
4 He explains that during the initial asylum proceedings, he never mentioned the sexual violence
because he was suffering from post-traumatic stress disorder and felt ashamed and humiliated.
CAT/C/84/D/1189/2023
4
GE.26-07110
services. In particular, this hospital had a 24-hour emergency unit where doctors could
administer the necessary treatment in the event of anaphylactic shock. The EpiPen—which,
according to one of the medical reports submitted, the complainant was required to have on
hand at all times—was always available at the Base Hospital. With regard to his mental health
issues, the complainant could also receive treatment in Vavuniya at the Vavuniya General
Hospital, the second-largest hospital in the province, which had a psychiatric clinic.
2.12
On 17 March 2021, the Federal Administrative Court rejected the complainant’s
appeal as manifestly unfounded. It found that there was nothing in the case file to support his
allegations. The evidence presented to support the complainant’s grounds for asylum was not
sufficient to render them credible. The Court did not accept the complainant’s argument that
the discrepancies in his account concerned only minor details and could easily be explained
by the time that had elapsed between his two hearings and his condition at the time of those
hearings. The Court noted that the hearing transcripts did not show that the complainant had
been prevented from presenting his grounds for asylum in a coherent and comprehensive
manner, or that his state of health had had any impact on the quality of his responses. When
asked about his health, particularly during his hearing on the grounds for asylum, the
complainant was explicitly told that he could request a break if he felt the need for one, which
he did not do. The representative of the aid organization who was present at the hearing on
the grounds for asylum did not feel it necessary to intervene, nor did he report any specific
issues on the form provided for that purpose. Moreover, the complainant was able to answer
all the questions put to him without any apparent difficulty.
2.13
The Court noted that the complainant had been unable to describe precisely how he
had been apprehended by officers of the Criminal Investigation Department, despite the
insistence of the person conducting the hearing. His account did not include descriptions of
the people he spoke with or his personal impressions. He had also failed to describe the
reactions of his mother and sister, who were present when the men came to arrest him, or the
camp to which he was taken. Furthermore, and most importantly, the Court found it highly
unlikely that the complainant could have escaped from these men as easily as described if he
had actually been suspected of possessing information about the distribution of the funds of
the Liberation Tigers of Tamil Eelam received from abroad. Furthermore, although he had
stated that he had accompanied R. on about ten occasions in connection with his activities,
the complainant had at no point provided details about their collaboration; for example, he
had not specified whether he was paid for his services as a driver or whether he accompanied
R. to see the recipients of the funds or waited for him outside. With regard to the medical
reports submitted, the Court found that they merely confirmed that the complainant had
suffered a crush fracture of the phalanges of his left hand. However, it was not possible to
determine from these reports the circumstances in which he had sustained the injury, nor
whether it had been inflicted by a third party and for what reasons.
2.14
Lastly, the Court examined whether the complainant would have a well-founded fear
of suffering serious harm if returned to Sri Lanka due to his Tamil ethnicity and his activities
in Switzerland. It concluded that, in the absence of significant risk factors, the fact that the
complainant is of Tamil ethnicity and is from the Northern Province, that he has filed an
asylum application and that he claims not to have a passport to return to Sri Lanka and risks
being subjected to interrogation in the event of a forced return to that country did not
constitute risk factors that would, in and of themselves, give rise to an objective fear of
reprisals.
2.15
After the asylum proceedings, the complainant began psychotherapy with a
psychotherapist and a psychiatrist. In a confirmation of treatment report dated 8 March 2022,
they noted that he was suffering from post-traumatic stress disorder, which manifested in
nightmares, flashbacks and difficulty sleeping. After more than three years of treatment, the
complainant finally felt sufficiently at ease to describe in greater detail the traumatic events
he had experienced in Sri Lanka. According to his therapists, the severity of the events he
described, which had forced him to flee, explained why he had found it so difficult to talk
about what had happened to him in Sri Lanka. According to these experts, his account of the
events was highly consistent given the torture he had endured, and a return to his country of
origin – the source of his trauma – would have disastrous consequences.
CAT/C/84/D/1189/2023
GE.26-07110
5
2.16
On 7 April 2022, the complainant filed an application for re-examination based on
two new elements: his ability to describe the acts of torture – specifically the sexual violence
– he had suffered and the current situation in Sri Lanka. He explained that he was known to
the Sri Lankan authorities as a supporter of the Liberation Tigers of Tamil Eelam because of
the assistance he had provided to the movement, and that in October 2021, members of the
military had visited his family to obtain information about him. He also pointed out that since
his arrival in Switzerland, he had been an active member of the Association internationale
des droits de l’homme, that he had helped organize demonstrations to support the Tamil cause
and raise public awareness of the violence committed in Sri Lanka and that the Sri Lankan
Government was aware of his activities because photos of the demonstrations were regularly
published in local newspapers. He had also witnessed a heated exchange – which he had
filmed and later posted online – between the president of that association and the Sri Lankan
Minister of the Interior, during which the latter allegedly made hateful and racist remarks.
The complainant stated that the Criminal Investigation Department was still actively
searching for him and that officers regularly visited his family’s home. He requested that a
further hearing be held.
2.17
On 22 June 2022, the State Secretariat for Migration summoned the complainant for
an additional hearing. During this hearing, the complainant described the acts of sexual
torture to which he had been subjected. As he was stressed, uncomfortable and torn between
a sense of humiliation and the need to describe the facts in detail to ensure his survival – as
he feared he would face his abusers again if sent back to his country – he described these acts
in less detail than in the confirmation of treatment report dated 8 March 2022.5 He also
revisited the other points raised during the previous hearings and discussed the activism he
had been involved in since arriving in Geneva. With regard to his escape from the camp, he
explained that he had recently learned from his sister living in Switzerland that another of his
sisters had paid a large sum of money to the soldiers for him to be released from the detention
camp in July 2015.
2.18
On 5 July 2022, the State Secretariat for Migration denied the application for re-
examination. It found that the new evidence submitted regarding the complainant’s health
was insufficient to establish the true reasons and the exact circumstances of his departure
from Sri Lanka. While it is fully aware that certain inconsistencies and gaps might appear in
the statements of individuals suffering from post-traumatic stress disorder, it recalled that the
diagnosis did not in itself establish the actual causes of the trauma – the alleged persecution
– or the circumstances in which the trauma had occurred, and that it constituted only one
factor among many that should be taken into account in assessing the credibility of the
allegations of persecution. It also noted that the complainant had failed to provide a more
consistent and credible account during the additional hearing on 22 June 2022, particularly
regarding the specific assistance provided to R. and the circumstances of his escape.
2.19
The State Secretariat further considered that the complainant’s involvement in
Switzerland in support of the Tamil cause was not particularly significant or likely to attract
the attention of the Sri Lankan authorities, and that he would likely not be exposed to acts of
persecution relevant to the right to asylum upon his return to Sri Lanka. In particular, there
was no evidence that the complainant had filmed the altercation between the association’s
president and the Sri Lankan Minister of the Interior in 2017 and had disseminated the
footage. With regard to the enforcement of the removal order, the State Secretariat relied on
the jurisprudence of the European Court of Human Rights to emphasize that the risk of a
further deterioration in his mental health or even of a suicide attempt did not justify the
imposition of an alternative measure from the perspective of lawfulness or enforceability, as
long as the authorities responsible for enforcing the removal took concrete measures to
prevent that risk from materializing. Furthermore, the complainant’s mental health and the
risk of a relapse had no bearing on the availability and accessibility of care in Sri Lanka.
2.20
On 8 September 2022, the Federal Administrative Court dismissed the complainant’s
appeal, finding that his statements had varied and were contradictory and that post-traumatic
5 He maintains that the bond of trust he has built with his therapist has helped him feel less stressed and
more open.
CAT/C/84/D/1189/2023
6
GE.26-07110
stress disorder was not sufficient to explain the significance, number and nature of the
inconsistencies and contradictions.
2.21
The complainant claims that, on an unspecified date, he obtained evidence that he was
actively wanted in Sri Lanka, in the form of a police summons dated August 2022.6
Complaint
3.1
The complainant claims that his deportation to Sri Lanka would constitute a violation
of his rights under article 3 of the Convention. He states that he was identified by the Sri
Lankan authorities as a supporter of the Liberation Tigers of Tamil Eelam, which is why he
was interrogated and tortured.
3.2
During his hearing before the State Secretariat for Migration, he still bore visible
physical scars from the torture he had endured. The complainant was unable to discuss the
sexual violence during his initial asylum proceedings because of the post-traumatic stress
disorder from which he suffers. During his additional hearing, he was able to discuss these
events, although in less detail than he had with his psychologists. This is due to the
relationship of trust he has built with them over the course of their sessions, which has
allowed him to open up to them. According to the complainant, the Swiss asylum procedure
does not provide an environment in which victims of torture can speak openly.
3.3
The complainant asserts that the Swiss authorities did not take these new elements
into account, choosing instead to focus on minor inconsistencies that were not directly related
to the acts of torture described. The contradictions in question relate to the timeline of the
activities carried out with R. and not to the acts of torture to which he was subjected. These
inconsistencies, which are common among people suffering from post-traumatic stress
disorder, are due to the complainant’s medical condition, which prevents him from having a
clear understanding of the sequence of events. Since the State Party did not take this into
consideration, insufficient attention was paid to his account.
3.4
The complainant concludes that, if deported, he would be identified upon arrival in
Sri Lanka. He would most definitely be subjected to further interrogation accompanied by
acts of torture, especially since he has continued to campaign for the Tamil cause and remains
wanted by the Sri Lankan authorities. His life and physical integrity are therefore in danger.
State Party’s observations on the merits
4.1
On 29 April 2024, the State Party submitted its observations on the merits, reiterating
the arguments made by the Swiss asylum authorities. It acknowledges that the human rights
situation in Sri Lanka is worrying in many respects7 but points out that this situation and the
risk of being subjected to torture in the event of return were already thoroughly assessed by
the Federal Administrative Court in a reference judgment.8 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 who are suspected of trying to rekindle
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.
4.2
With regard to the police summons dated 5 August 2022, accompanied by a very
rough translation, which constitutes the only new evidence the complainant has submitted to
the Committee, the State Party argues that it is well known that this type of summons, which
takes the form of a pre-printed form titled “Sri Lanka Police Message Form”, can easily be
forged given the simplicity of its design. It is also doubtful that such a form would be used
directly to summon a person for questioning. Lastly, it is improbable that the Sri Lankan
police would summon the complainant eight years after he left the country. Therefore, the
State Party is of the view that this new document cannot be considered to have any real
evidentiary value.
6 On file.
7 See CAT/C/LKA/CO/5.
8 Federal Administrative Court, judgment E-1866/2015, 15 July 2016.
CAT/C/84/D/1189/2023
GE.26-07110
7
4.3
With regard to the complainant’s removal, the Swiss authorities did not dispute the
seriousness of his medical condition or the need for medical treatment. However, they found
that the complainant’s state of health did not preclude his return to Sri Lanka, either in terms
of the lawfulness or the enforceability of that measure. Medical treatment can continue in Sri
Lanka. As for the authorities responsible for carrying out the removal, the State Party
emphasizes that they will arrange for the complainant to be accompanied by a person with
medical skills or any other person capable of providing him with appropriate support during
the return journey.
4.4
The State Party does not dispute the fact that the complainant suffers from post-
traumatic stress disorder, but recalls that the State Secretariat for Migration considered that
the diagnosis did not in itself establish the actual causes of his trauma or the circumstances
in which the trauma occurred, and that it constituted only one factor among many that should
be taken into account in assessing the credibility of the allegations of persecution. While it is
the responsibility of the treating doctor – in this case, the psychiatrist – to determine the
existence of trauma, such a determination does not establish the causes and circumstances of
the trauma. This is not a question of the facts, but of how they are assessed. Furthermore, this
is a legal matter that the authority is free to decide. Following its review, the State Secretariat
therefore concluded that the new medical report dated 8 March 2022 and the details it
contained did not establish a plausible basis for the actual reasons and circumstances of the
complainant’s departure from Sri Lanka. The Federal Administrative Court, for its part,
upheld the State Secretariat’s analysis and also found that post-traumatic stress disorder,
regardless of its origin, was not sufficient to render the complainant’s reasons for fleeing –
including the alleged sexual violence – plausible.
4.5
With regard to the complainant’s political activities in Switzerland, the State Party
submits that the duties he performed for the Association internationale des droits de l’homme,
namely, organizing meals and assisting volunteers, were clearly insufficient to draw the
attention of the Sri Lankan authorities. During his additional hearing on 22 June 2022, the
complainant was questioned about his political activities in Switzerland. In this regard, he
acknowledged, in particular, that he was not at the frontline and that he did not hold a specific
position within the association.
4.6
Lastly, with regard to the factual inconsistencies in the complainant’s account, the
State Party recalls that the Swiss authorities identified numerous such inconsistencies, which
were significant, from the outset of the ordinary asylum proceedings. Moreover, the
additional hearing with the complainant on 22 June 2022 did not resolve these
inconsistencies; on the contrary.
Complainant’s comments on the State Party’s observations
5.1
On 22 May 2025, the complainant submitted his comments. He argues that his
diagnosis of post-traumatic stress disorder must be taken into consideration when assessing
how he presented his account, and that the account must be examined in the light of that
diagnosis. Furthermore, this diagnosis also required an appropriate framework to be put in
place for the hearing, or, failing that, for it to be taken into account. The Swiss authorities
simply followed standard procedure, which does not take into consideration the difficulties
faced by victims of torture and sexual violence, especially those suffering from post-
traumatic stress disorder.
5.2
With regard to the factual inconsistencies identified by the Swiss authorities, the
complainant submits that the authorities merely noted the existence of contradictions, without
taking into account the symptoms of post-traumatic stress disorder and without determining,
as required by the Committee’s practice, whether these inconsistencies outweighed the
overall veracity of his allegations, bearing in mind his diagnosis. According to the
complainant, this is not the case if his account is analysed in the light of his diagnosis. He
therefore presents his own analysis of the statements made to the Swiss asylum authorities,
concluding that the implausible elements cited by the Swiss authorities are not actually
implausible and that any remaining inconsistencies are only minor. He maintains that he has
been consistent in his statements regarding his work with R., his arrest, his stay in the
detention camp, the acts of torture and his escape, even though his account has not always
been entirely precise, which can be attributed to his state of health.
CAT/C/84/D/1189/2023
8
GE.26-07110
5.3
Although the State Party disputes the authenticity of the summons, the complainant
contends that it has not provided any evidence to support this claim. The State Party merely
argued that it was easy to find this type of summons on the Internet, without providing any
evidence to support that claim. In addition, the summons is fairly detailed and includes the
badge numbers of the officers involved, as well as an official stamp and signature.9 There is
therefore no basis for questioning the authenticity of this document, which confirms that the
complainant is still actively sought by the authorities.
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
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.10
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
9 To prove this, the complainant submits the original summons.
10 N.K. v. Switzerland (CAT/C/77/D/989/2020), para. 7.3.
CAT/C/84/D/1189/2023
GE.26-07110
9
she faces a foreseeable, real and personal risk.11 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.12
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 the fact that he left the country. The Committee also notes the
complainant’s assertions that he was detained, interrogated and tortured in July 2015 and that
the Sri Lankan authorities are still looking for him. In this regard, the Committee takes note
of the police summons dated August 2022, which the complainant submitted in support of
his allegations to the Committee only after his asylum application had been rejected in the
final instance by the Federal Administrative Court, and which was therefore not submitted to
the State Party’s authorities during the asylum proceedings.
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 notes that the Swiss authorities duly examined
the complainant’s claims – made orally and in writing – to support his asylum application
and his application for re-examination but found inconsistencies therein and expressed doubts
as to their credibility. In addition, the Swiss courts noted that the hearing transcripts did not
show that the complainant had been prevented from presenting his grounds for asylum in a
coherent and comprehensive manner, or that his state of health had had any impact on the
quality of his responses.
7.7
In this regard, the Committee takes note of the complainant’s central argument that
the inconsistencies in his account can be explained in the light of his diagnosis of post-
traumatic stress disorder, a factor that the Swiss asylum authorities did not take into account.
However, it notes that both the State Secretariat for Migration and the Federal Administrative
Court acknowledged that certain inconsistencies and gaps might appear in the statements of
individuals suffering from post-traumatic stress disorder, but ruled that the diagnosis alone
did not establish the actual causes of the trauma or the circumstances in which it occurred.
The Committee considers that the complainant has not provided a convincing explanation for
those discrepancies.
7.8
The Committee notes that the Swiss authorities did not dispute that the complainant
had physical after-effects. However, it notes that the complainant did not demonstrate before
the Swiss asylum authorities that the alleged violence he had suffered was due to the action
of State agents or was committed in the circumstances he alleges.
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.13 The
Committee also notes that, according to its jurisprudence, the onus is generally on the
complainant to make an arguable case.14 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, either because of his alleged ties to the Liberation Tigers of Tamil Eelam
or his political activities in Switzerland. The complainant also did not demonstrate that his
family was currently being persecuted owing to his past or present activities.
11 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.
12 Committee against Torture, general comment No. 4 (2017), paras. 11, 39 and 50.
13 N.K. v. Switzerland, para. 7.10.
14 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.
CAT/C/84/D/1189/2023
10
GE.26-07110
7.10
With regard to the police summons issued in August 2022, the Committee considers
that it does not constitute a new fact or evidence produced to support new claims, but rather
additional evidence for his claims that he was subjected to torture and ill-treatment, which
are based on a set of facts that have already been examined by the State Party’s authorities.
Furthermore, the Committee notes that the complainant provides no explanation as to why
the Sri Lankan police summoned him seven years after the events of July 2015.
7.11
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 during the two asylum proceedings. 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.
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.