The case of K. and D. v. Switzerland. The decision of the UN Committee against Torture dated April 21, 2023. Communication No. 1077/2021.
In 2021, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to Switzerland.
The applicants were Colombian citizens. The applicants claimed that by expelling them and their children to Colombia, the State party would violate their rights under articles 3 and 16 of the Convention. The Committee concluded that the applicants' expulsion to Colombia would violate their rights under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
The Committee's legal position: The purpose of the assessment of forced expulsion 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 he 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 a sufficient basis for recognizing that the person concerned would be in danger of being subjected to torture upon return to that country; It is necessary to provide additional grounds to confirm that such a danger would threaten this person personally. In turn, 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 or her case (paragraph 7.3 of the Decision).
The Committee recalls its general comment No. 4 (2017), according to which "serious grounds" exist in all cases where the risk of torture after expulsion is "foreseeable, personal, existing and real". Personal risk factors for the applicant may include, inter alia: (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; and d) the applicant's political affiliation or political activity (paragraph 7.4 of the Decision).
The burden of proof lies with the applicant, who must present convincing arguments in the case, that is, he or she must present arguments that would indicate that the threat of being subjected to torture is predictable, existing, personal and real. However, if the applicants are unable to 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, then the burden of proof falls on the opposite party, and investigate the allegations and verify the information that underlie the communication, is due to the relevant State party. The Committee relies heavily on the findings of fact prepared by the authorities of the State party concerned; Nevertheless, he does not consider himself bound by such conclusions. The Committee shall 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 recalls its jurisprudence that the obligation to refrain from expelling a person who may be in danger of causing severe pain or suffering by a non-State entity without the knowledge or acquiescence of the State goes beyond article 3 of the Convention. The Committee refers to its general comment No. 4 (2017), in which it stated that States parties should refrain from deporting persons to another State if there are serious grounds to believe that they are at risk of being subjected to torture or other forms of ill-treatment by non-State entities, including groups that illegally carry out actions that cause severe pain or suffering for purposes prohibited by the Convention, and in respect of which the receiving State has no actual control or has it only partially, or actions that it is unable to prevent, or whose impunity it is unable to counteract (paragraph 7.6 of the Decision).
In this regard, the Committee points out that in its recent Concluding Observations on Colombia's sixth periodic report, it specifically expressed concern about reports documenting, inter alia, murders, disappearances, threats and attacks committed by members of non-State armed groups and criminal organizations in various regions of the country and the insufficient measures to ensure the protection of civilians and those who reports such crimes and/or participates in their investigation. The Committee also refers to its jurisprudence according to which the possibility of seeking asylum within the country or the possibility of resettlement is not a reliable and long-term alternative in cases where the lack of protection is widespread and the person concerned may be persecuted again or face serious harm (paragraph 7.9 of the Decision).
The Committee's assessment of the factual circumstances of the case: the applicants' claim that there are serious grounds to believe that they and their children are at risk of being abducted and killed in Colombia, since K. He received threats from dissidents (Oppositionists.) from the Revolutionary Armed Forces of Colombia - Army of the People (hereinafter - FARC - AN) when he worked on a project to create short films about state-funded programs in which former combatants from the FARC - AN (Revolutionary Armed Forces of Colombia - Army of the People.) successfully reintegrated into the Company (paragraph 7.6 of the Decision).
The Committee recalled K.'s statement. that on October 2 and November 27, 2019, he received verbal threats from dissidents from the FARC-AN, who warned him that if he handed over the filmed documentary materials to his customer within the deadline set by the contract, December 6, 2019, he would be kidnapped. The Committee took note of K.'s statement. that during the incident on October 2, 2019, dissidents told him that they knew the names of his wife and children. The Committee has taken into account the State party's observation that the applicants could have applied, but did not apply for State protection; However, K. explained that he was afraid to contact the police because dissidents had warned him not to file a report and not to tell anyone about the threats. The Committee noted K.'s statement. that since the dissidents knew the deadline for handing over the footage to them, they allegedly infiltrated a government agency for which K. He made short films. The Committee took into account K.'s statements. that after receiving the first threat on October 2, 2019, he ordered his wife and children to leave their place of residence and move to Bogota, a larger city, where, in his opinion, the family should have been relatively safe in a guarded residential complex. The Committee noted that on November 27, 2019, after receiving the second threat, K. purchased plane tickets for the family to leave Colombia on December 28, 2019. The Committee acknowledged the State party's observation that on October 2, 2019, an army official informed a government agency about the threat of possible abduction in the area where K. planned to go, but noted K.'s response, according to which this warning indicated that the army would not be able to protect K. from the abduction, because that official advised K. to change his travel plans. The Committee took into account K.'s statement. that, despite his change of route, on the same day the same two dissidents from the FARC-AN threatened to kidnap him. The Committee took note of K.'s statement. that on December 26, 2019 (two days after the first documentary he shot for a government agency was distributed on social networks), the threats intensified; in particular, he received and recorded a phone call in which he was informed that dissidents were nearby and that K. was included in the list of targets for murder from- for his cooperation with the Government of Colombia. The Committee noted that although the complainants did not file a police report until December 29, 2019, they did not claim that in the days before their departure from Colombia on January 4, 2020, anyone from the police contacted them. The Committee pointed out that in his statement to the police, K. reported the alleged threats and stated that his family needed help. Despite the fact that the Federal Administrative Court noted that the applicants did not change their place of residence between 6 and 28 December 2019, and stated that the applicants, therefore, could not consider that their lives were in danger, however, the Committee took note of K.'s statement. that he and his family had been living underground for several days before leaving the country (paragraph 7.7 of the Decision).
The Committee acknowledged the State party's observation that the complainants could have sought protection from the Colombian authorities; however, it noted that in a decision issued in 2019, the Federal Administrative Court considered that the National Protection Unit charged with protecting at-risk persons was not sufficiently effective. The Committee took note of the report submitted by the complainants, according to which the protective measures taken by the Colombian authorities may be insufficient and ineffective. The Committee noted the applicants' contention that the situation of K. It is similar to the situation of Mauricio Lesama, a documentary journalist whose murder in 2019 was attributed to dissidents from the FARC-AN, who allegedly believed that he collaborated with the Colombian government. The Committee took into account K.'s statement. that the peace agreement concluded in 2016 between the Government of Colombia and the FARC-AN did not allow violence from FARC-AN dissidents to be brought under control, since in 2019 they took up arms again, and in 2022 they killed several soldiers of the Colombian government troops, which indicated that The authorities, despite their efforts, are not able to properly control them. The Committee drew attention to reports that armed non-State actors in Colombia frequently attack both Government representatives and civilians, in particular some vulnerable groups, including journalists (paragraph 7.8 of the Decision).
The Committee took note of reports that in January 2023, some FARC-AN dissidents and the Government of Colombia concluded a six-month ceasefire agreement. However, given that the current ceasefire agreement was concluded recently and for a short period of time, the Committee considered that there was no clear indication of whether the situation in the country had changed for those who received threats from dissidents from the FARC-AN. The Committee took into account the human rights situation in Colombia for journalists reporting on FARC-AN dissidents and reports of insufficient measures taken by the Colombian authorities to protect these journalists from violence and killings. The Committee acknowledged K.'s allegations. that he was making short films for a government agency involved in the reintegration of former FARC-AN combatants; in October and November 2019, he received two personal threats and one death threat by phone from FARC-AN dissidents; he reported the threats to the police, who did not take any action during the five days preceding the family's departure from Colombia; after receiving the first threat, he moved his family, but then learned that the dissidents had found him again; could not report the threats to the government agency that hired him due to reasonable fears that it was unsafe to do so; and received a message from dissidents that he was listed as a target for assassination and that his wife and children were also at risk. The Committee noted that, given the public nature of K.'s films, which are still available on the Government agency's channel on one of the social networks, there is no indication that the threat to K. and his family disappeared after their departure from Colombia. The Committee considered that, based on all the information provided to it, there were serious grounds to believe that, if the applicants and their children were returned to Colombia, the authorities would not be able to exercise due diligence in order to protect them from the real, existing, personal and foreseeable risk of intentional infliction of severe pain or suffering by FARC dissidents - AN, which the Government of Colombia is unable to control, and, accordingly, will actually find themselves in a position where they will have no choice but to tacitly agree to such treatment of applicants (paragraph 7.9 of the Decision).
The Committee's conclusions: The expulsion of the applicants to Colombia would violate their rights under article 3 of the Convention (paragraph 8 of the Decision).