The case "T.B. v. Switzerland". The decision of the Committee against Torture of April 22, 2022. Communication No. 862/2018.
In 2018, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
The Committee found that the complainant had every opportunity to substantiate and clarify his complaints at the national level, but the arguments he presented did not allow the national authorities to conclude that upon return to Ethiopia he could be subjected to torture or cruel, inhuman or degrading treatment. In addition, the complainant has not proved that the authorities of the State party did not conduct a proper investigation into his allegations. In the Committee's view, the State party's expulsion of the applicant to Ethiopia would not constitute a violation of article 3 of the Convention.
As could be seen from the text of the Decision, the author claimed that the State party had violated his rights under articles 2, paragraph 2, 12 and 14, paragraph 2, of the Covenant. With regard to article 12 of the Covenant, the State party prohibited the author from leaving its territory and obliged him to report to the police twice a week for four months. The subsequent assignment of bail for a period of five months also restricted the author's freedom of movement, since he would have lost part or all of the bail if he had not appeared to law enforcement agencies, as required. The author claimed that the State party violated his rights under article 14, paragraph 2, of the Covenant, since he was "innocent after the termination of the preliminary investigation, but at the same time remained partially punished by restricting freedom of movement". The author claimed that, in violation of his right to an effective remedy under article 2, paragraph 2, of the Covenant, the State party had not reimbursed him for the damage caused in connection with these measures, despite the fact that he was found innocent (paragraphs 3.1 - 3.3 of the Decision).
The Committee's legal position: when assessing the risk (Threat of torture or other unacceptable treatment after the author's return to Ethiopia), the Committee should take 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 recalls that the purpose of such an assessment is to determine whether the person in question would personally face a foreseeable and real risk of being subjected to torture in the country to which the person is to be returned. Consequently, the existence of a practice of gross, flagrant or mass violations of human rights in a particular country is not in itself sufficient grounds to assert that the person concerned would be in danger of being subjected to torture upon return to that country; additional grounds must be given to confirm that such a danger would threaten the person personally the face. On the other hand, 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 the specific circumstances of his case (paragraph 7.3 of the Decision).
The Committee refers to its general comment No. 4 (2017), according to which the obligation of non-refoulement arises whenever there are "serious grounds" to believe that a person may be subjected to torture in the State to which he is to be deported, either in a personal capacity or as a member of a threatened group the risk of being subjected to torture in the destination State. The Committee recalls that "serious grounds" exist whenever the risk of torture is "foreseeable, personal, present and real". Signs of personal danger may include, in particular:
- a) the applicant's ethnic origin and religious affiliation;
(b) Previous use of torture;
(c) Incommunicado detention or other forms of arbitrary and unlawful detention in the country of origin;
(d) The applicant's political affiliation or political activity;
(e) Arrest and/or detention without guarantee of fair treatment and trial;
(f) Violations of the right to freedom of thought, conscience and religion; and
(g) Clandestine flight from the country of origin due to threats of torture (paragraph 7.4 of the Decision).
The Committee recalls that the burden of proof rests on the complainant, who must present a reasoned statement of the case, that is, present well-founded arguments showing that the risk of being subjected to torture is foreseeable, present, personal and real. However, if the applicants are in a situation where they cannot provide more detailed information about their case, for example, when they have proved that they are unable to obtain documentation regarding their allegations of torture, or are deprived of their liberty, the burden of proof is placed on the opposite side and investigate the allegations, verify the information, which are the basis of the complaint, it is up to the State party concerned. The Committee relies heavily on the findings of fact prepared by the authorities of the State party concerned; nevertheless, it does not consider itself bound by such conclusions. The Committee will freely assess the information available to it in accordance with article 22, paragraph 4, of the Convention, taking into account all the circumstances relevant to each case (paragraph 7.5 of the Decision).
The Committee's assessment of the factual circumstances of the case: In examining the risk of torture in the present case, the Committee took note of the applicant's claim that he faced treatment contrary to article 3 of the Convention if he returned to Ethiopia in connection with his political activities in Ethiopia and Switzerland as a member of Ginbot Sebat and the Ethiopian Task Force on Human Rights and Democracy (Switzerland), including organizing and participating in their meetings and demonstrations. The Committee also took into account the complainant's allegations that he had been in prison and subjected to various forms of ill-treatment before fleeing Ethiopia. The Committee also drew attention to the fact that the determination of the degree of confidence on the part of the Swiss asylum authorities was erroneous and that any alleged discrepancies in his statements were explained by the fact that the third interview was conducted almost four years after the first preliminary interview (paragraph 7.6 of the Decision).
The Committee noted that the State party's authorities considered the complainant's allegations about his political activities in Ethiopia to be brief, vague and superficial. The Committee has noted the State party's contention that the complainant was only able to describe in the most general terms the torture allegedly inflicted during his detention in 2005, without providing any details or evidence regarding the detention itself and the ill-treatment he suffered after an unsuccessful attempt to flee the country in 2005. The Committee noted that, with regard to the complainant's political activities in Switzerland, the State party has not ruled out - the complainant attended conferences held by the opposition, that he was acquainted with high-ranking members and that he was photographed with them. However, in view of the contradictions in the complainant's account and the lack of more accurate information about his activities and contacts, the Committee concluded that the complainant's political activities in Switzerland were too insignificant to be able to assert that he personally faced an immediate and serious risk of being subjected to torture if he were deported to Ethiopia (paragraph 7.7 of the Decision).
With regard to the complainant's claim that many members of Ginbot Sebat and other dissidents were arrested and detained in Ethiopia, that Ginbot Sebat was included in the list of terrorist organizations by the Ethiopian authorities and some of its members were sentenced to death, the Committee noted that in June 2018 Ginbot Sebat announced that he is abandoning the armed struggle against the Ethiopian Government as a result of the reforms he is planning. In addition, in the same year, the Ethiopian Government removed Ginbot Sebat from the list of terrorist organizations, and the President of Ethiopia pardoned the Secretary General of Ginbot Sebat and released him from custody (paragraph 7.8 of the Decision).
The Committee recalled that it had to determine whether the complainant was currently at risk of being subjected to torture if he were deported to Ethiopia. The Committee established: The applicant had every opportunity to substantiate and clarify his complaints at the national level, but that the arguments he presented did not allow the national authorities to conclude that upon return to Ethiopia he could be subjected to torture or cruel, inhuman or degrading treatment. The Committee noted that the complainant did not provide any new information or details during the examination of his second asylum application in connection with his allegations of torture in the past or activities in the host country, despite the fact that this lack of content was specifically noted by the State Secretariat for Migration in its interim decision of 17 October 2017 (paragraph 7.9 of the Decision).
The Committee noted that the complainant had not provided any evidence regarding his previous arrest or ill-treatment in Ethiopia and had not been able to demonstrate that the Ethiopian authorities were looking for him on the basis of past events or for any other reason. It followed from the materials contained in the case that he had not even contacted his family, friends or other activists to find out whether there was such an interest on the part of the Ethiopian authorities (paragraph 7.10 of the Decision).
The Committee concluded that the complainant's return to Ethiopia would not pose a real, foreseeable, personal and present risk of being subjected to torture. In addition, the applicant has not proved that the authorities of the State party did not conduct a proper investigation into his allegations (paragraph 7.11 of the Decision).
The Committee's conclusions: The applicant's expulsion to Ethiopia would not constitute a violation of article 3 of the Convention (paragraph 8 of the Decision).