United Nations

CAT/C/59/D/658/2015

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Distr.: General

28 March 2017

English

Original: French

Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 658/2015 * , * *

Submitted by:M.F. (represented by counsel, Mr. Tarig Hassan)

Alleged victim:The complainant

State party:Switzerland

Date of complaint:9 February 2015 (initial submission)

Date of the present decision:15 November 2016

Subject matter:Expulsion of the complainant to Ethiopia

Procedural issues:Non-substantiation of claims; complaint manifestly unfounded

Substantive issues:Risk of torture in the event of deportation to country of origin

Article of the Convention:3

1.The author of the communication, dated 9 February 2015, is M.F., an Ethiopian national born on 5 February 1990. She filed an application for asylum in Switzerland, but her request was rejected. She is the subject of an order for her removal to Ethiopia. She maintains that her forced repatriation to Ethiopia would constitute a violation by Switzerland of article 3 of the Convention. The complainant is represented by counsel, Mr. Tarig Hassan.

1.2On 11 February 2015, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party to refrain from expelling the complainant to Ethiopia while her complaint was being considered by the Committee.

The facts as submitted by the complainant

2.1The complainant is a national of Ethiopia and comes from Addis Ababa. She belongs to the Amhara ethnic group and is Orthodox by religion.

2.2The complainant alleges that, in 2008-2009 (2001 according to the Ethiopian calendar), while she was working as a nurse at Zewditu hospital, she became a member of the Ginbot 7 party. When the medical director discovered that she was a member of the opposition movement, he ordered her to become a member of the Ehadeg party, on pain of having to leave her job. For that reason, she had to give up her job and became a housewife, while continuing to participate in the meetings of her Ginbot 7 cell and to carry out information and awareness campaigns on Ginbot 7.

2.3Her partner was also a member of the same opposition party and, for that reason, was arrested on 2 May 2012 at their home in Addis Ababa and imprisoned.

2.4The complainant last saw her partner on 8 May 2012, at a public court hearing. She was questioned by police officers concerning her partner’s activities on 17 May 2012. The police confiscated her mobile phone and her identity card and ordered her to hand over documents relating to her partner’s political activities. The complainant was also struck and insulted by the police officers. A second hearing of her partner was scheduled for 22 May. The complainant was not able to attend. On 24 May 2012, she was arrested, interrogated and ill-treated a second time by the police, who wanted to force her to give them evidence that would show that she and her partner were members of Ginbot 7. Fearing that she would be detained in her turn, and without news of her partner, the complainant left Ethiopia with her daughter on 9 June 2012 for Switzerland, travelling through Italy.

2.5She and her daughter arrived in Switzerland illegally on 11 June 2012 and applied for asylum. The complainant was heard on 18 June 2012 and 20 June 2014 by the competent authorities in respect of her application for asylum.

2.6On 20 October 2014, the Federal Office of Migration (now the State Secretariat for Migration) rejected her asylum request and ordered her deportation to Ethiopia. On 20 November 2014, the complainant filed an appeal against that decision with the Federal Administrative Court. In a ruling of 12 January 2015, the Federal Administrative Court rejected the appeal. Both the State Secretariat for Migration and the Federal Administrative Court considered that the complainant had not presented a convincing argument that she was member of Ginbot 7. The State Secretariat for Migration ordered the complainant to leave the country by 18 February 2015.

The complaint

3.1The complainant asserts that she is a victim of a violation of article 3 of the Convention by the Swiss authorities, who have ordered her expulsion to a country where she will certainly be at risk of being subjected to torture and other cruel, inhuman or degrading treatment or punishment. She claims that her membership of Ginbot 7 and her political activities in Ethiopia and Switzerland — where she has participated in meetings of the party by videoconference — mean that she is in personal danger. According to the complainant, the Swiss authorities have applied too severe a standard of proof, taking her statements out of context and not taking adequate account in the hearings of the cultural background and her state of mental health.

3.2The complainant also states that, in 2011, the Ethiopian Parliament declared Ginbot 7 to be a terrorist organization. She claims that members of Ginbot 7, regardless of their level of involvement, are at particular risk and are likely to be arbitrarily arrested and ill-treated in prison.

3.3In addition, the complainant claims that her political activities and those of her partner have drawn the attention of the Ethiopian security services, which further increases the manifest risk of persecution, torture and inhuman or degrading treatment to which she would be exposed if she were to return to Ethiopia.

3.4The complainant also points out that she suffers from post-traumatic stress and that her daughter has significant language delay and presents autistic tendencies.

State party’s observations on the merits

4.1On 11 August 2015, the State party submitted observations on the merits of the communication. The State party recognizes that the human rights situation in Ethiopia is worrying in many respects. However, this situation cannot, of itself, constitute a sufficient reason to conclude that the author would be at risk of being subjected to torture on her return to her country of origin. The State party considers that the complainant has not provided evidence to suggest that she would run a foreseeable, real and personal risk of being subjected to torture if she were returned to Ethiopia.

4.2The complainant states that she was ill-treated and threatened by police officers on two occasions, on 17 and 24 May 2012. The Swiss authorities have identified inconsistencies in her statements to the extent that they consider them not plausible. Thus, it was only that at her second hearing that the complainant claimed to have been arrested at her home on 24 May 2012. At her first hearing, she explained in one sentence that she had been questioned on 17 May 2012 and had left Ethiopia on 9 June, without making any reference to the event which allegedly occurred between those dates. The State party considers that it is not credible that the complainant failed to mention the arrest on that occasion even briefly, although she later claimed to have been detained for several hours, severely beaten and threatened with death, and that it was as a result of that arrest that she decided to go abroad. Furthermore, the complainant first claimed that, during the first questioning, she had been interrogated by four to five police officers, but then later said that she had been questioned by a single person.

4.3The State party also considers that the complainant’s allegations that, if she were to return to the country, she would be tortured for her membership of Ginbot 7 since 2008-2009 do not seem credible. At her first hearing, she mentioned only her partner’s political activities. When asked to provide other reasons that would prevent her returning to Ethiopia, she did not add anything. It was only at the second hearing that she stated that she too was active in Ginbot 7 and that she would therefore be sought by the Ethiopian authorities. The State party considers that, if the complainant had actually taken part in such political activity and if she were sought for that reason, she would not have omitted mentioning this essential element at her first hearing.

4.4In addition, the complainant described her activities in Ginbot 7 in a confused way. She had to be asked several times how she had joined the party before she said that she had contacted a friend of her partner’s, who allegedly put her in contact with the party, but she did not specify how she had joined. The Swiss authorities also noted a lack of credibility in the complainant’s statement that the reason she did not ask her partner to help her join the party was that, until she joined, she was unaware that he was a member. She also did not explain how, in those circumstances, she was aware of her partner’s friend’s activities. The complainant also made vague and inconsistent statements about party meetings that did not indicate that she had actually been present. She did not respond to the questions asked in any detail, but rather with brief and non-committal statements, obliging the interviewer to try to elicit more information by asking further questions. It seemed that the author did not know when the movement in question became illegal, and has no information on how it is organized at local level.

4.5In respect of the complainant’s statements that she also took part in Ginbot 7 activities in Switzerland and that would mean she would risk being subjected to torture if she were to return to Ethiopia, the State party points out that the Swiss authorities consider it unlikely that the author was a member of Ginbot 7 or took part in activities for the movement in Ethiopia. Moreover, the activities that she claimed to have been involved in Switzerland could not be considered decisive since she allegedly only participated in meetings on the Internet. Thus, even if it were proved that she had taken part in meetings of the party, that would not constitute lasting and intense political activity that could be considered a serious and real threat for the Government of Ethiopia. Therefore, there is no reason to believe that the complainant would, through the activities in question, have attracted the attention of the Ethiopian authorities and would, as a result, risk being subjected to torture if she were to return to the country.

4.6The State party notes the factual inconsistencies in the complainant’s claims. Firstly, with regard to the arrest of her partner, the author stated at the first hearing that he had been arrested by three people in civilian clothes and, at the second hearing, that the three officers were in uniform. In addition, at the first hearing, the complainant said she saw her partner twice between his arrest and the court hearing that she attended, while, at the second hearing, she said she had not seen him between the arrest and the court hearing. The Federal Administrative Court also noted that the complainant, while stating that her partner had documents that could prove that they were members of Ginbot 7, was not able to say what those documents were. Furthermore, she said at first that she did not know whether a second hearing had been held in the trial of her partner because she did not have the right to contact him. She then stated that the hearing had been cancelled and that she was told of that by her partner’s counsel. Regarding the first hearing in the trial against her partner, the author first mentioned that it took place on 15 May 2012, and then said that it was on 8 May 2012.

4.7The State party considers that the complainant’s statements concerning her contacts with members of her family who remain in Ethiopia are not credible. It believes that it is not plausible that the author did not inform her partner, who is also the father of her daughter, of her departure from Ethiopia and that she did not attempt to stay in touch with him, at least through his lawyer. In addition, she remained very vague about the circumstances in which she met her partner and about his job, sometimes not responding clearly to the questions posed.

4.8The State party notes that it is not credible that the complainant cut off all contact with her mother and a close friend in Ethiopia, as such behaviour would be contrary to logic and general experience. The State party considers that the argument presented by the complainant, that she did not want her mother to know where she was living abroad, is not convincing, since the complainant communicated an address in Switzerland to her friend so that she could send evidence; for that matter, she never claimed that the police had searched for her at her mother’s house. Furthermore, the complainant was able to contact a person in Ethiopia who sent her diplomas and a police summons. After initially indicating that she no longer had contact with anyone living in Ethiopia, the author admitted having been in contact with her partner’s sisters. The arrest warrant sent to the address of the complainant’s partner, which was submitted as the only piece of evidence, can be accorded no evidential value; it is a copy and no shipping envelope was submitted with it. Moreover, although the complainant stated at her hearing on 18 June 2012 that she would hand the document over to the Swiss authorities, she submitted it only two and a half years later, at the appeal stage before the Federal Administrative Court. Finally, the text of the warrant is not consistent with the complainant’s statements, as it states that her partner had been arrested a first time before 2 May 2012, something that she had never mentioned before.

4.9When asked about the contradictions in her statements, the complainant simply denied that they were inconsistent, without offering any plausible explanation for them. The complainant therefore failed to demonstrate that she runs a personal, present and serious risk of being subjected to torture if she were to be deported to Ethiopia. The Federal Office of Migration noted at the time that it took its decision that there was no civil war or general state of violence in Ethiopia.

4.10 Finally, the State party submits that the complainant filed medical certificates concerning her health and that of her daughter. However, she does not claim that her return to Ethiopia would be contrary to the Convention on account of the state of her health or that of her daughter. In any event, the question of whether deportation may be imposed, given the state of health of the author and her daughter was considered in detail by the Swiss authorities. The Federal Office of Migration noted that numerous medical facilities offer specialized psychiatric care, as well as medicines, which would be adapted to the needs of the complainant. With regard to the disorder from which the complainant’s daughter suffers (significant language delay and suspected autistic tendency), the Federal Office of Migration noted that there are specialized structures for the care of children with autistic characteristics, such as the Nehemia Autism Center. Moreover, the authorities stressed that the complainant had completed nursing training and had practised as a nurse. The complainant is therefore familiar with the medical environment and is trained to take best care of her child. Since her mother and her partner’s family are in Ethiopia, the complainant could also benefit from their support if she returned there. Given all this, the State party considers that there are no grounds for concluding that the return of the complainant and her daughter is unreasonable, and invites the Committee to find that the return of the author would not constitute a breach of article 3 of the Convention, and the Rapporteur on new complaints and interim measures to lift the interim measures.

Complainant’s comments on the State party’s submissions

5.1On 15 February 2016, in response to the comments from the State party, the complainant recalls that she mentioned the second arrest of 24 May 2012 only at the second hearing. The complainant submits that the different nature of the two hearings must be taken into account by the Swiss authorities in assessing the credibility of the account given by an asylum seeker. The first hearing serves only to establish the identity of and the route taken by the person concerned, who is also invited to briefly state his or her reasons for leaving. It is true that the complainant did not explicitly mention the arrest of 24 May 2012 during the initial hearing. She gave a general account of her situation. It is in this context that her answer to the question on the number of days between the event that caused her departure and her actual departure should be interpreted. She did say that she was questioned on 17 May 2012 and left the country on 9 June 2012. The fact that she used the plural in speaking of the “interrogations” at the first hearing highlights the fact that she underwent several interrogations, during which she was tortured. As the intention is to have a brief summary hearing, she cannot be reproached for failing to mention the details of the different questionings.

5.2Furthermore, the events were traumatic for the complainant: she was repeatedly insulted and struck by the Ethiopian authorities. It is also clear from medical certificates that she is suffering from a major depressive episode and has suicidal ideation. Her mental trauma must be taken into account in assessing the credibility of her account.

5.3Regarding the number of police officers who interrogated her, it should be recalled that the complainant has always emphasized that, during the first questioning, she was arrested by two police officers and questioned by another police officer in the presence of three other persons. There is thus no contradiction in what she said in respect of the number of police officers who interrogated her.

5.4As concerns the complainant’s political activities in Ethiopia, she reiterates that she was part of a political group whose members are at particular risk. The Ethiopian Parliament has declared Ginbot 7 to be a terrorist party and its members are therefore highly likely to be arrested. They are persecuted and arrested on the basis of the Anti-Terrorism Act. The simple fact of lending moral support to a person or organization suspected of terrorism is enough to lead to a long prison sentence. The danger of being a member of Ginbot 7 is therefore indisputable, and the State party does not question it. The complainant also states that she did not mention that she was a member of Ginbot 7 at the first hearing because that was not the direct reason why she fled the country. The complainant therefore considers that the fact that she referred to her membership of Ginbot 7 only during the second hearing cannot be considered as delayed information. Furthermore, the complainant also claims that she made specific statements about her membership of the movement and her political activities. The complainant further says that she did not mention her membership of the group to her partner immediately because the secrecy of the structure prohibited her from doing so.

5.5Moreover, the State party does not explain that the complainant allegedly was not aware of the organization of Ginbot 7 at the local level. She gave detailed descriptions of the meetings with other members of her cell, and provided information on the leader and the founding of the movement that only a member might know.

5.6In respect of her political activities in Switzerland, the complainant specified that she was unable to travel to Ginbot 7 political meetings in Switzerland because she was alone with her child. She therefore participated in online meetings in order to continue her political activities for the movement. Whether these activities can be defined as lasting and intense should be analysed in light of the fact that, according to the Ethiopian authorities, moral support for a person or an organization suspected of terrorism constitutes a serious and specific threat. Moreover, it is probable that the complainant’s activities on the Internet are known to the authorities in Ethiopia. Human Rights Watch has noted that the Ethiopian authorities monitor Internet activity beyond the country’s borders. In addition to her membership of Ginbot 7, the complainant is also an active member of the Association of Ethiopians in Switzerland. She devotes much time and energy to organizing and conducting demonstrations against the Ethiopian regime. The complainant states that she is very probably on the blacklist of the Ethiopian Mission in Geneva as an activist against the Ethiopian regime. Her political activities in Switzerland are therefore likely to expose her to the risk of torture if she were returned to Ethiopia.

5.7The complainant submits that the factual inconsistencies in some of her statements arise from the time between the event in question and the second hearing (more than two years). She also considers that this inconsistency alone cannot justify a conclusion that none of her claims are credible. She actually described the incident in great detail. With regard to the number of meetings with her partner between the arrest and the court hearing, the complainant considers that the only discrepancy in her story is that, at her first hearing, she said that she had last seen her partner on 15 May 2012 (instead of 8 May 2012) and thus that she had seen him twice (instead of once) after his arrest. This slight discrepancy is not enough to conclude that the complainant’s story is implausible. Furthermore, the complainant said that she had trouble remembering everything because of psychological problems that she suffers as a result of the traumatic events she experienced.

5.8In response to the statement that she was unable to describe the documents that the Ethiopian authorities were looking for, the complainant explained that she had replied that they were looking for Ginbot 7 documents and the membership list to provide proof that would incriminate her and her partner. The complainant states that her partner was in possession of online documents with information on the group’s activities, the programme of meetings, and the party membership. With regard to the State party’s allegation that the complainant did not know the date of her partner’s second hearing, she recalls that she has always said that it had been postponed from the planned date to 22 May 2012 and that she was unable to attend. That is why she was not sure whether the hearing had taken place or when.

5.9In respect of the lack of contact with her partner and the fact that she had not informed him that she was leaving Ethiopia, the complainant explains that her partner was imprisoned because of his political activity and that the Ethiopian Government prohibited him having any contact with the outside world. Consequently, the complainant was not able to inform him of her departure, which took place in a rush, and she had no opportunity to speak to her partner or his lawyer. The complainant does, however, claim that she has maintained contact with her partner’s sisters in case there is any news of him. Regarding the lack of contact with her mother and her close friend since she left Ethiopia, the complainant reiterates that the Ethiopian authorities monitor calls that residents make or receive from abroad, meaning that any call is dangerous, which explains why she had not contacted her mother. However, the complainant claims to have contacted her close friend to ask her to send evidence to prove her plight to the Swiss authorities, despite the danger that could represent. She has since broken off all contact with her relatives in Ethiopia for security reasons. The complainant therefore considers that it is unclear how her family relations are not credible.

5.10Lastly, with regard to the validity of the arrest warrant provided by the complainant and contested by the State party, she says that the fact that the warrant mentions a previous warrant to that reported by the complainant does not call into question the validity of the document. Her intention had been to describe the events that had led her to leave Ethiopia and so she did not mention the previous arrest. Furthermore, the content of the arrest warrant is absolutely consistent with the complainant’s story.

5.11The complainant has physical and mental health problems: she suffers from bronchial asthma, a hiatal hernia, pangastritis and nasal polyps. Her doctors say that she must follow her medical treatment regularly and exactly. One of the doctors considers it essential that the complainant remain in Switzerland for that purpose. In terms of mental health, the complainant is suffering from a major depressive episode and suicidal ideation. Both doctors say that the depression shows signs of becoming chronic and has become exacerbated since the complainant’s asylum application was refused. She therefore needs sustained and regular psychiatric care. It would be desirable that she be able to continue enjoying good quality treatment and that she not be exposed to any more stressful situations. She also suffers from problems with concentration and memory, which at least partially explains the vagueness and inconsistencies in her statements during the hearings before the Swiss authorities. To assess the complainant’s credibility, her vulnerable mental state must be taken into account, which she does not believe that the Swiss authorities have done.

5.12 In conclusion, there are serious grounds for fearing that the complainant would be subjected to torture if she were to return to Ethiopia. The complainant therefore asks the Committee to conclude that her removal would violate the principle of non-refoulement and would constitute a violation of article 3 of the Convention.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before considering any claims contained in a complaint, the Committee must decide whether or not 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.

6.2The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it 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 concedes that the complainant has exhausted all available domestic remedies. Consequently, the Committee finds no obstacle to admissibility and declares the communication admissible.

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 concerned, in accordance with article 22 (4) of the Convention.

7.2In the present case, the issue before the Committee is whether the return of the complainant to Ethiopia would constitute a violation of the State party’s obligation under article 3 (1) of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would risk being subjected to torture.

7.3The 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 her country of origin. 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. The Committee recalls that the aim of such determination is to establish whether the individual concerned would personally be at a foreseeable and real risk of being tortured in the country to which he or she would return. It follows that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his or her return to that country. Additional grounds must be adduced to show that the individual concerned would personally be at risk. Conversely, the absence of a consistent pattern of flagrant violations of human rights does not mean that a person might not be subjected to torture in his or her specific circumstances.

7.4The Committee recalls its general comment No. 1 (1997) on the implementation of article 3 of the Convention in the context of article 22, and reaffirms that the existence of a 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 Committee recalls that the burden of proof normally falls on the complainant, who must present an arguable case establishing that he or she is at foreseeable, real and personal risk. The Committee further recalls that, in accordance with its general comment No. 1, it gives considerable weight to findings of fact that are made by the 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, of free assessment of the facts based upon the full set of circumstances in each case.

7.5The complainant claims that, in Ethiopia, she could be persecuted or subjected to torture because of her membership of Ginbot 7 and her political activities in Ethiopia and Switzerland and the fact that Ginbot 7 was declared to be a terrorist organization in 2011. She adds that even ordinary members or supporters of Ginbot 7 may be arbitrarily arrested and subjected to abuse in prison, and refers to the interrogations that she has undergone in the past and the fact that the security services have shown interest in the political activities of her partner.

7.6In the present case, the Committee notes that the complainant claims to have been ill-treated and threatened by the police because of her political activities twice, on 17 and 24 May 2012. The Committee also notes that, according to the State party, the fact that, during her first hearing, the complainant did not mention her arrest on 24 May 2012, when she was detained for several hours, severely beaten and threatened with death, and the inconsistencies in her statements about the number of policemen who questioned her, make her allegations implausible. The Committee further notes that, according to the State party, the complainant’s political activities in Switzerland, despite being proven, do not constitute lasting and intense activity that could be considered a serious and real threat to the Government. The Committee also takes note of the medical reports concerning the complainant’s health, indicating a major depressive episode and suicidal ideation, as symptoms of the post-traumatic stress disorder from which she suffers. The Committee also notes that the complainant’s credibility should be assessed taking account of the vulnerable state of her mental health. The Committee further notes that, according to the State party, there are numerous medical facilities adapted to treat the complainant and her daughter in Ethiopia, where the complainant could be supported by the presence of her mother and her partner’s family.

7.7The Committee recalls that it must ascertain whether the complainant currently runs a risk of being subjected to torture if she were returned to Ethiopia. The Committee notes that the complainant has had ample opportunity to provide supporting evidence and more details about her claims at the national level to the Federal Office of Migration and the Federal Administrative Court, but that the evidence provided did not allow the national authorities to conclude that her participation in political activities, while proven, could place her at risk of being subjected to torture upon her return. Furthermore, 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 a complainant is personally at risk of being tortured. On the basis of the information before it, the Committee concludes that the complainant has not provided proof that her political activities are important enough to attract the interest of the authorities of her country of origin and concludes that the information provided does not demonstrate that she would personally be at risk of torture if she were to return to Ethiopia.

8.In the light of the above, the Committee considers that the information submitted by the complainant is insufficient to establish her claim that she would be at a foreseeable, real and personal risk of torture if she were returned to Ethiopia.

9.Accordingly, the Committee, acting under article 22 (7) of the Convention, concludes that the complainant’s return to Ethiopia would not constitute a breach of article 3 of the Convention by the State party.