Committee against Torture

Decision adopted by the Committee under article 22 of the Convention, concerning communication No. 865/2018 * , **

Communication submitted by:K.M. (represented by counsel, Mr. Tarig Hassan)

Alleged victim:The complainant

State party:Switzerland

Date of complaint:31 July 2017 (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 21 March 2018 (not issued in document form)

Date of adoption of decision:27 July 2021

Subject matter:Deportation to Ethiopia

Procedural issues:Admissibility – manifestly ill-founded

Substantive issue:Risk of torture if deported (non-refoulement)

Articles of the Convention:3 and 22

1.1The complainant is K.M., a national of Ethiopia born in 1964. He is subject to a removal order and considers that his deportation to Ethiopia 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, Mr. Tarig Hassan.

1.2On 4 August 2017, the Committee, acting through its Rapporteur on new complaints and interim measures, decided not to accede to the complainant’s request for interim measures. The complainant reiterated the same request on two further occasions, but these requests were again denied by the Rapporteur, on 28 November 2017 and 20 March 2018.

The facts as submitted by the complainant

2.1The complainant is a member of the Ethiopian Orthodox Tewahedo Church. He was a priest in the church while living in Ethiopia. Following the separation of the church into two synods, the complainant came out in favour of one of the two branches and was forced to leave the country as a result. After his arrival in Switzerland, the complainant joined the Ethiopian Orthodox Tewahedo Church in Switzerland, in Zurich, and became a volunteer priest. In addition to his religious activities, the complainant has been a member of the Ethiopian People’s Patriotic Front since 1 August 2011. In this capacity, the complainant has been involved in recruiting members, formulating slogans and encouraging others to participate in demonstrations organized by the Ethiopian People’s Patriotic Front against the Ethiopian regime. In 2015 and 2016, the complainant participated in several protests in Switzerland. On 18 June 2017, he attended a conference organized by the Ethiopian Human Rights and Democracy Task Force in Switzerland and the movement known as Ginbot 7. He has been photographed with Berhanu Nega, one of the founders of Ginbot 7.

2.2On 4 March 2010, the complainant applied for asylum in Switzerland. On 31 May 2010, the Federal Office for Migration rejected his application. The complainant appealed against this decision. On 3 December 2010, the Federal Administrative Court confirmed the decision of the Federal Office. On 27 July 2011, the complainant filed an application for re-examination in respect of the Federal Office’s decision of 31 May 2010. On 29 August 2011, the Court rejected the complainant’s application on the grounds that it lacked consistency and was unsubstantiated.

2.3On 25 November 2011, the complainant filed a second application for asylum with the Federal Office for Migration, which rejected the application on 7 March 2014. This decision was upheld by the Federal Administrative Court on 26 March 2014.

2.4On 29 April 2015, the complainant filed a third application for asylum. On 25 June 2015, the State Secretariat for Migration, which had succeeded the Federal Office for Migration on 1 January 2015, rejected this new application on the grounds that it did not consider that the complainant’s activities put him at risk as he claimed and that he was not considered a real threat to the Ethiopian regime. The State Secretariat for Migration furthermore considered that the demonstrations in which the complainant had taken part were mainly aimed at the European Union and the United Nations, not the Ethiopian authorities. The Office also stated that the complainant’s position as a priest did not constitute a political profile implying a dissident attitude towards the Ethiopian authorities.

2.5On 6 July 2017, the Federal Administrative Court confirmed the decision of the State Secretariat for Migration. The Court conceded that Ethiopian nationals living in exile ran the risk of persecution and/or arrest upon their return to Ethiopia if they were identified as members or supporters of dissident organizations. The Court concluded, however, that the complainant’s activities in the Church and his political activities could not be described as constituting a dissident attitude that could result in persecution by the Ethiopian authorities. The Court accepted that the complainant had a publicly visible position within the community of Ethiopians in exile in Switzerland, as he was one of only three priests in the Ethiopian Orthodox Tewahedo Church in Switzerland. However, despite the fact that the Ethiopian regime engaged in surveillance of politically active public figures in exile, the Court did not consider that the complainant’s activities as a priest and his political activities as part of the Ethiopian People’s Patriotic Front could be considered to pose a real threat to the Ethiopian regime. In addition, the Court found that the complainant had not provided substantial evidence that the Swiss branch of the Ethiopian Orthodox Tewahedo Church was truly critical of the Ethiopian regime. Accordingly, the Court found that the claim that the complainant would be in danger of being subjected to torture or ill-treatment if he were returned to Ethiopia was unfounded.

The complaint

3.1The complainant claims that if he were returned to Ethiopia, Switzerland would be in breach of article 3 of the Convention. He considers that, through his pastoral work and political activities in Switzerland, he has associated with high-ranking members of the opposition, and this exposes him to persecution by the Ethiopian authorities. The complainant claims that although the Ethiopian Orthodox Tewahedo Church is not considered to be part of the political opposition, its activities and members are closely monitored by the Ethiopian security services if they are identified as critical of the current regime. The complainant refers to a report of the Immigration and Refugee Board of Canada, which concluded that members of the Church who were politically active risked arrest. The complainant gives several examples of members of Ginbot 7 who have been arrested and sentenced to long terms of imprisonment or even life imprisonment or the death penalty. He refers to a resolution adopted by the European Parliament on 18 May 2017, calling for a United Nations-led independent inquiry into the murder of several prominent figures opposed to the Ethiopian Government.

3.2The complainant adds that the current regime in Ethiopia has tightened its grip since October 2016, when it declared a state of emergency that was later extended by the authorities until August 2017.

3.3The complainant states that he has demonstrated an unequivocal political consciousness and a clearly dissident attitude towards the Ethiopian authorities. He considers that his removal to Ethiopia would constitute a violation by Switzerland of his rights under article 3 of the Convention.

State party’s observations on the merits

4.1The State party submitted its observations on the merits of the communication in a note verbale dated 22 October 2018.

4.2The State party first recalls the facts and the proceedings brought before the Swiss authorities and courts. It also analyses the present case in the light of the elements that must be taken into account to ascertain the existence of a personal, present and serious danger of the complainant being subjected to torture upon deportation to his country of origin: (a) evidence of a consistent pattern of gross, flagrant or mass human rights violations in the country of origin; (b) any claims of torture or ill-treatment in the recent past and independent evidence to support those claims; (c) the political activity of the complainant within or outside the country of origin; (d) any evidence as to the credibility of the complainant; and (e) any factual inconsistencies in the complainant’s claims.

4.3The State party considers that the existence of a consistent pattern of gross, flagrant or mass violations of human rights does not, in itself, constitute sufficient grounds for determining that a particular person will be subjected to torture upon return to his or her country of origin. The Committee must establish whether the complainant is personally at risk of being subjected to torture in the country to which he or she would return. Additional grounds must be adduced in order for the risk of torture to qualify as foreseeable, real and personal for the purposes of article 3 (1) of the Convention. The risk of torture must be assessed on grounds that go beyond mere theory or suspicion.

4.4The State party indicates that the Federal Administrative Court noted in its decision of 6 July 2017 that the human rights situation in Ethiopia could endanger activists and members of the opposition, including those living in exile. The State party emphasizes, however, that the Court called into question the likelihood and extent of the possible surveillance of opponents in Switzerland, especially with regard to persons who apparently pose no threat to the Ethiopian regime. The State party adds that the Court carried out a detailed analysis of the political character and historical background of the Ethiopian Orthodox Tewahedo Church, where the complainant is a priest, and observed that the Church has two synods, of which one is close to the Ethiopian regime and the other is close to the opposition. The State party indicates that it is not clear from the sources at its disposal, nor from the complainant’s statements, to which synod the Ethiopian Orthodox Tewahedo Church in Zurich belongs, nor whether the Church is critical of the Ethiopian regime.

4.5The State party notes that the situation in Ethiopia has changed in several respects since the Federal Administrative Court issued its decision of 6 July 2017 regarding the complainant’s case. The state of emergency declared in February 2018 was officially lifted in June 2018, the Prime Minister, Abiy Ahmed, concluded a peace treaty with Eritrea and hundreds of political prisoners were released.

4.6The State party indicates that the complainant does not claim to have been subjected to torture or ill-treatment in the past to substantiate the risk that he would allegedly run if he were removed to Ethiopia.

4.7According to the State party, the complainant has not been able to establish that he has engaged in political activities in Ethiopia or Switzerland that could result in his persecution by the Ethiopian regime. The State party emphasizes that the complainant’s first application for asylum was rejected because he failed to provide evidence that he was a priest in the Ethiopian Orthodox Tewahedo Church in Ethiopia. It also emphasizes that the complainant has not been able to demonstrate that he had to leave his country because of the separation of the Church into two synods and specific problems that he claims he faced in his country of origin. The State party further emphasizes that, in his second and third applications for asylum, the complainant mainly referred to his activities in Switzerland and omitted to mention the problems that he had invoked in support of his first application. Moreover, the complaint has not called into question the arguments of the national authorities casting doubt on the activities he claimed to have carried out in Ethiopia. The State party also emphasizes that the complainant has not claimed before the national authorities or before the Committee that he pursued political activities in opposition to the regime in his country of origin. The State party submits that, during his hearings, the complainant expressly denied that he had had any problems with the authorities of his country of origin or that he had engaged in political activities there. He claimed only to have fled because of internal conflicts within his religious community.

4.8With regard to the complainant’s political activities in Switzerland, the State party points out that on 13 November 2016 the head of the Ethiopian Orthodox Tewahedo Church in Switzerland recognized that the complainant was one of the three priests officiating services for the Church in Switzerland and was also a chaplain and a teacher in the Sunday school. Furthermore, the State party emphasizes that, after a careful examination of the complainant’s case, the Federal Administrative Court agreed with the position of the State Secretariat for Migration, stating in a decision of 6 July 2017 that it had no doubt that the complainant, as one of the three priests active in the Ethiopian Orthodox Tewahedo Church in Switzerland, held a “publicly visible” position within the community of Ethiopians in exile. The State party claims, however, that despite the Ethiopian regime’s surveillance of exiled, politically active and publicly visible figures, it cannot be assumed that the complainant’s activities and statements in his capacity as a priest, chaplain and Sunday schoolteacher are of a sufficiently political nature to attract the interest of the Ethiopian authorities.

4.9With regard to the credibility of the claims made, the State party submits that the complainant has not credibly demonstrated that the Ethiopian Orthodox Tewahedo Church in Zurich is critical of the Ethiopian regime, despite his having been explicitly requested to do so. Moreover, the complainant has not provided evidence of his supposedly critical and public political views, which he could have done by providing transcripts of statements that he claims to have made at religious ceremonies or copies of written publications. The State party also considers that the complainant’s participation in political demonstrations, such as rallies in Geneva against human rights violations in Ethiopia and meetings of the Ethiopian Satellite Television and Radio network, is not sufficient to conclude that he is a politically active figure whose profile could be perceived as a threat by the Ethiopian regime. The State party further considers that the complainant’s primary activity in the Ethiopian People’s Patriotic Front is of limited importance and consists solely in publicity work aimed at the recruitment of new members. The State party indicates that, in view of the complainant’s particular situation, his involvement in the Ethiopian Orthodox Tewahedo Church and his political activities in exile, and even in view of the current situation in Ethiopia, it cannot be claimed with any certainty that the Ethiopian regime has identified him as a serious opponent who could pose a threat to the regime.

4.10With regard to the information submitted by the complainant for the first time to the Committee concerning his participation in a rally held on 22 May 2017 in Geneva and a conference organized by the Ethiopian Human Rights and Democracy Task Force in Switzerland and the Ginbot 7 movement in Bern on 18 June 2017, the State party considers that these facts have no bearing on the conclusions of the Swiss authorities. The State party also considers that, neither the letter dated 22 August 2017 attesting to the complainant’s membership of the Ethiopian Human Rights and Democracy Task Force in Switzerland, nor the letter dated 19 February 2018 attesting to his participation in the Ginbot 7 movement, put the Swiss authorities in a position to conclude that there exists a threat to his person.

4.11With regard to factual inconsistencies in the information provided by the complainant, the State party points out that, during the examination of the complainant’s first application for asylum, the competent Swiss authorities found that his account of the reasons that prompted him to leave his country was not credible. The State party also points out that, before the Committee, the complainant did not challenge the findings of the national authorities regarding the lack of credibility of his statements.

4.12With regard to the complainant’s state of health, the State party refers to the medical report dated 3 October 2017, according to which the complainant allegedly suffers from, inter alia, depressive episodes, hypertonia and diabetes. The State party recalls that these problems can be treated in Addis Ababa and that the complainant can apply for medical return assistance in order to ensure that he receives treatment during the transition period. The State party considers that the complainant’s state of health is not relevant in determining whether there are substantial grounds for believing that he risks being subjected to torture if returned. It recalls that, according to the Committee’s jurisprudence, the aggravation of the condition of an individual’s physical or mental state of health as a result of deportation is generally insufficient, in the absence of additional factors, to amount to degrading treatment in violation of article 16 of the Convention. The State party considers that, in this case, contrary to the case of A.N. v. Switzerland, the complainant does not appear to suffer from serious health problems that, if he were returned, would lead to a very rapid deterioration in his state of health that would clearly endanger his life or seriously undermine his physical integrity.

4.13Accordingly, the State party considers that the complainant has not demonstrated that there are substantial grounds for believing that he would face a specific and personal risk of being subjected to treatment contrary to the Convention if returned to his country of origin.

Complainant’s comments on the State party’s observations

5.1On 16 May 2019, the complainant submitted his comments on the State party’s observations.

5.2The complainant points out contradictions in the State party’s observations. He notes that, on the one hand, the State party acknowledges that torture appears to be frequently used in Ethiopia and that the human rights situation is a matter of serious concern but, on the other hand, it argues that the human rights situation has improved since the issuance of the Federal Administrative Court decision dated 6 July 2017. The complainant states that, although the general situation in Ethiopia has improved, it is impossible to say whether the efforts to reconcile with the opposition will be effective and sustainable. The complainant recalls that the Court stated in several recent decisions that, despite the progress made, the situation in Ethiopia remained worrying and was still largely unstable. He adds that the tense situation in Ethiopia has been described in a detailed report from the Danish Immigration Service, which pointed out that, despite some improvement, there were reports of politically motivated detention and a substantial number of political prisoners had not yet been released.

5.3With regard to his political activities in Switzerland, the complainant emphasizes that the State party recognizes that the Ethiopian secret services have recently stepped up their surveillance of members of the opposition residing abroad and that it should therefore be assumed that persons who are politically active against the Ethiopian regime can be identified. The complainant notes, however, that the State party has stated that such surveillance is limited to persons who hold positions of responsibility in the political opposition and pose a threat to the regime. The complainant emphasizes that, while the State party affirms that the Ethiopian Government respects freedom of religion and that religious leaders (in exile) are not considered to be a threat by the Ethiopian regime, the Swiss authorities have not contested the report of the Immigration and Refugee Board of Canada, presented in the communication, which concluded that members of the Ethiopian Orthodox Tewahedo Church have been arrested and persecuted. The complainant observes that the report of the Immigration and Refugee Board of Canada states that religious freedom is tolerated in Ethiopia only insofar as practitioners are not involved in any political activity. The complainant therefore reiterates that his membership of the Ethiopian People’s Patriotic Front and the Ginbot 7 movement, engaged in various political activities, and his position as one of the only three priests of the Ethiopian Orthodox Tewahedo Church in Switzerland, would put him at risk of being tortured or subjected to ill-treatment if he were returned to Ethiopia, in violation of article 3 of the Convention.

Issues and proceedings before the Committee

Consideration of admissibility

6.1Before 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.

6.2The 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. It notes that, in the present case, the State party does not contest the exhaustion of all available domestic remedies by the complainant or the admissibility of the communication.

6.3As the Committee finds no further obstacles to admissibility, it declares the complaint admissible under article 3 of the Convention and proceeds with its consideration of the merits.

Consideration of the merits

7.1The Committee has considered the present communication in the light of all the information made available to it by the parties, in accordance with article 22 (4) of the Convention.

7.2The issue before the Committee is whether the removal of the complainant to Ethiopia would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or 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 or other cruel, inhuman or degrading treatment or punishment. The Committee recalls that the prohibition of torture is absolute and non-derogable and that no exceptional circumstances whatsoever may be invoked by a State party to justify acts of 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 if returned to Ethiopia. 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 such determination is to establish whether the individual concerned would be personally at a foreseeable 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 consistent 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. 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. 4 (2017), according to which the non-refoulement obligation exists whenever there are “substantial grounds” for believing that the person concerned would be in danger of being subjected to torture in a State to which he or she is facing deportation, either as an individual or as a member of a group that may be at risk of being tortured in the State of destination. The Committee’s practice in this context has been to determine that “substantial grounds” exist whenever the risk of torture is “foreseeable, personal, present and real”. Indications of personal risk may include in particular the political affiliation or political activities of the complainant or members of his or her family, or the existence of an arrest warrant without a guarantee of fair treatment and trial. The Committee recalls that the burden of proof is upon the complainant, who must present an arguable case, that is, submit substantiated arguments showing that the danger of being subjected to torture is foreseeable, personal, present and real. However, when complainants are in a situation where they cannot elaborate on their case, the burden of proof is reversed and the State party concerned must investigate the allegations and verify the information on which the communication is based. The Committee also recalls that it gives considerable weight to findings of fact made by organs of the State party concerned, however, it is not bound by such findings and will make a free assessment of the information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.

7.5In the present case, the Committee notes the complainant’s argument that his removal to Ethiopia would constitute a violation by Switzerland of his rights under article 3 of the Convention. The Committee also notes the complainant’s claim that, as a member of the Ethiopian Orthodox Tewahedo Church in exile, critical of the Ethiopian authorities, and as a member of the Ethiopian People’s Patriotic Front and the Ginbot 7 movement, he is likely to be subjected to ill-treatment in the event of his return to his country of origin.

7.6The Committee recalls that it must ascertain whether the complainant would currently run the risk of being subjected to torture if returned to Ethiopia. It notes that the complainant had ample opportunity to provide supporting evidence and more details about his claims, at the national level, to the Federal Office for Migration, and then to the State Secretariat for Migration, and before the Federal Administrative Court, but that the evidence provided did not lead the national authorities to conclude that he would be at risk of being subjected to torture or cruel, inhuman or degrading treatment in the event of his return to Ethiopia, and that the situation in that country has changed considerably since the end of the state of emergency and the release of hundreds of political prisoners. The Committee recalls that the existence of human rights violations in the complainant’s country of origin is not, in itself, sufficient for it to conclude that a complainant runs a personal risk of being tortured. Therefore, the mere fact that human rights violations occur in Ethiopia is not in itself sufficient to conclude that the complainant’s removal to that country would constitute a violation of article 3 of the Convention. The Committee notes that it appears from the case file that the State party’s authorities took into account the relevant background information when examining the complainant’s asylum applications. It finds that in the present case the complainant has not proved that his political activities are significant enough to attract the interest of the authorities of his country of origin and concludes that the information provided does not demonstrate that he would be personally at risk of torture or inhuman or degrading treatment if he were to return to Ethiopia.

7.7The Committee observes that the complainant has not demonstrated that he has been tortured or ill-treated in the recent past and has not produced any evidence that might cast doubt on the conclusions of the Swiss authorities with regard to their refusal of his application for asylum.

7.8The Committee notes that the complainant has submitted a medical report dated 3 October 2017 in support of his communication, in which it is stated that he suffers from, inter alia, depressive episodes, hypertonia and diabetes and that a return to Ethiopia would deny him access to adequate health care and violate his rights under the Convention. The Committee also notes the State party’s argument that these health problems can be treated in Addis Ababa and that the complainant has the possibility of applying for assistance to ensure that he receives treatment during the transition period. The Committee therefore considers that the complainant’s situation, including his physical and psychological condition, has been thoroughly examined by the Swiss authorities, who have found that there are no major risks that the complaint’s rights under the Convention would be infringed upon if he were returned to Ethiopia.

7.9In the light of the above, the Committee considers that the information submitted by the complainant is insufficient to substantiate his claim that he would be at a foreseeable, real and personal risk of torture if he were returned to Ethiopia.

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