opencaselaw.ch

CAT/C/84/D/1189/2023

T.S. v. Switzerland

UNO-Ausschuss gegen Folter (CAT) · 2026-04-24 · en CH

Decision; Subjects: SWITZERLAND, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]

Volltext (verifizierbarer Originaltext)

GE.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

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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).

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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.

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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.

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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.

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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.

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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.

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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.

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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.