The case of Zhanbo Atilau Melie v. Switzerland. The decision of the Committee against Torture of May 5, 2023. Communication No. 1049/2021.
In 2021, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
As seen from the text of the Decision, the applicant is Zhanbo Atilau Melie, an Ethiopian citizen. He applied for asylum in Switzerland, but his application was rejected. An expulsion order was issued against him to Ethiopia, although he claimed that his expulsion would constitute a violation by the State party of article 3 of the Convention (paragraph 1.1 of the Decision).
The Committee's legal position: The purpose of the assessment is to determine whether the person in question would personally be at a foreseeable and real risk of being subjected to torture in the country to which he is to be returned. Consequently, the existence of a practice of gross, flagrant and mass violations of human rights in a particular country is not in itself a sufficient basis for determining that a particular person would be in danger of being subjected to torture upon return to that country. Additional grounds should be given to confirm that such a danger would threaten the person personally. Conversely, the absence of a consistent pattern of egregious human rights violations does not mean that the person concerned cannot be subjected to torture, taking into account his specific circumstances (paragraph 7.3 of the Opinion).
The threat and danger of being subjected to torture in the State under whose jurisdiction the expulsion (deportation) is to be carried out.
The Committee refers to its general comment No. 4 (2017), in which it indicated that when assessing the risk of torture, grounds beyond mere speculative assumptions or suspicions should be analyzed. Although the assessment of this risk should not be based on the criterion of "high probability", the Committee recalls that the burden of proof is usually placed on the applicant, who must provide convincing arguments to confirm that he is in "foreseeable, real and personal" danger. The Committee also recalls that, in accordance with its general comment No. 4 (2017), it relies heavily on factual statements prepared by the authorities of the State party concerned, but does not consider itself bound by such conclusions and, in accordance with article 22, paragraph 4, of the Convention, is entitled to freely assess the facts taking into account all the circumstances in each specific case (paragraph 7.4 of the Opinions).
The Committee's assessment of the factual circumstances of the case: it was necessary to determine whether there were serious grounds to believe that the applicant would personally be in danger of being subjected to torture upon return to Ethiopia. In assessing such a risk, the Committee should have taken into account all relevant considerations arising from article 3, paragraph 2, of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. The Committee also noted that, since Ethiopia had not made the declaration provided for in article 22, paragraph 1, of the Convention, if the applicant's rights under the Convention were violated in that country, he would be deprived of the legal opportunity to apply to the Committee for any protection (paragraph 7.3 of the Opinions).
In the present case, the Committee noted that, according to the complainant, he had been imprisoned and tortured in Ethiopia in connection with his political activities and that the decision to detain him had been taken in his absence. The author claimed that he had been tortured in prison in connection with his complaint under article 3 of the Convention, stating that he had been "arbitrarily detained and tortured" and that he was a "former victim of torture and inhuman treatment", but did not provide any additional details. The Committee noted that the Swiss authorities had duly examined the form and content of the alleged document from the Addis Ababa police Station (which, moreover, the applicant had not submitted to the Committee), designed to prove that the applicant's arrest order had been issued in his absence, and expressed doubts about its authenticity. The Committee noted that the Swiss authorities did not appear to question the credibility of the complainant's information about his alleged detention in Ethiopia in 2005 for political reasons. On the other hand, they stated that the applicant's claims that his participation in political demonstrations in 2005, for which he was imprisoned for 1 month and 20 days, was an event that directly led to his flight from the country in 2012, are not credible. The Committee noted that the complainant had not provided any evidence to support his allegations (paragraph 7.5 of the Opinions).
The Committee noted that, in the State party's view, the complainant's political activities in Switzerland did not constitute a prolonged and intensive activity that could be considered a threat to the Government of Ethiopia. The Committee took note of the medical report dated January 12, 2022, which indicated that the applicant had post-traumatic stress disorder. The Committee noted that the applicant had not explained the discrepancy between the 5-year detention period indicated in this medical report and the 1 month and 20 days period indicated by the Swiss asylum authority (paragraph 7.6 of the Opinion).
The Committee recognized that even if the argument that the complainant had been subjected to torture and ill-treatment in the past was accepted, the question was whether he was currently at risk of being subjected to torture in Ethiopia if forcibly returned. The Committee referred to its previous practice, according to which, as a rule, the burden of a reasoned presentation of the case lies with the applicant (paragraph 7.7 of the Opinions).
The Committee noted that the human rights situation in Ethiopia remains alarming in many ways. However, the Committee reiterated that the existence of human rights violations in the country of origin does not in itself constitute sufficient grounds to conclude that the complainant is personally at risk of being subjected to torture in that country.... The Committee pointed out that the applicant had been given ample opportunities to demonstrate evidence and more detailed information in support of his allegations during the proceedings before the State Secretariat for Migration and the Federal Administrative Court. However, the evidence presented by him did not lead to the conclusion that his participation in political activities in Ethiopia and Switzerland could expose him to the risk of torture or inhuman or degrading treatment upon return to Ethiopia (paragraph 7.8 of the Opinion).
The Committee noted that, in connection with the applicant's request for reconsideration of the case, the court of first instance had given him an incorrect deadline for filing an appeal, which, moreover, was confirmed by the appellate instance. It is regrettable that the applicant was unable to take advantage of the longer period established by law, but the Committee took note of the argument of the Federal Administrative Court in its decision of 26 October 2020 that the applicant had not demonstrated that a specific legal inconvenience had been created for him as a result, since he obviously still I was able to prepare and file my appeal (paragraph 7.9 of the Opinion).
Based on the information at its disposal, the Committee concluded that the complainant had not demonstrated that his political activities were significant enough to attract the interest of the authorities of the country of origin, and concluded that the information provided did not indicate that he would be personally, effectively, predictably and realistically threatened if returned to Ethiopia the risk of being subjected to torture (paragraph 7.10 of the Opinion).
In the light of the Committee's findings on the current human rights situation in Ethiopia, which appears to have deteriorated since the Federal Administrative Court's decision of 26 October 2020, the Committee considered that, before implementing its decision to expel the complainant, the State party should conduct a thorough assessment of the current human rights situation in Ethiopia and the State of the applicant's health, confirmed by a medical report dated January 12, 2022 (paragraph 8 of the Opinion).
The Committee's conclusions: The applicant's expulsion to Ethiopia would not constitute a violation by the State party of article 3 of the Convention (paragraph 9 of the Views).