CAT/C/71/D/790/2016
November 2016 from the Church of the Almighty God in Switzerland, attesting that she has
been a member of the church since 2016 and participates actively in meetings and activities.
State party’s observations on admissibility
4.
On 2 February 2017, the State party challenged the admissibility of the
communication, noting that the complainant had submitted an application to the European
Court of Human Rights on the same matter. On 9 November 2016, the latter rejected the
complainant’s request for interim measures and declared her application (No. 57382/16)
inadmissible because the admissibility conditions set forth in articles 34 and 35 of the
Convention for the Protection of Human Rights and Fundamental Freedoms had not been
met.3
Complainant’s comments on the State party’s observations on admissibility
5.1
On 18 September 2017, the complainant submitted her comments on the State party’s
observations on admissibility. She argues that the European Court of Human Rights has not
examined the same question, given that it declared her application inadmissible because, in
the absence of counsel, she had invoked the wrong convention, namely, the Convention
relating to the Status of Refugees.
5.2
On 23 December 2018, the complainant submitted supplementary comments. She
refers to social media websites, on which a video of an interview with her and pictures of her
participating in activities promoting the respect of human rights in China are posted. In the
video on YouTube, under the title, “10th Geneva summit spotlights human rights situations
in dictatorships”, the complainant is identified as a member of the Church of the Almighty
God.
5.3
The complainant submits statements from three professors specializing in the Church
of the Almighty God. They affirm that participation in, and membership of, xie jiao
(“heterodox teachings” or “evil cults”) is punished with three to seven years’ imprisonment
in China and that the Church of the Almighty God systematically features on xie jiao lists.
They also affirm that members of the church would certainly be arrested and detained if sent
back to China and would run a serious risk of being tortured and killed on the grounds of
their membership in the church alone. They claim that, because of local police corruption,
the incomplete implementation of the national police database and a lack of verification, it is
possible to procure a passport and leave the country with it.
State party’s additional observations on admissibility and observations on the merits
6.1
On 11 June 2019, the State party submitted its observations on admissibility and the
merits. It reiterates that the complaint is inadmissible on the grounds that the European Court
of Human Rights has examined the same question. It observes that the complaint is
inadmissible on the grounds of article 22 (5) (b) of the Convention, to the extent that the
complainant did not invoke her political activities in Switzerland in the domestic procedure.
They could have been the object of a second asylum application, which would have generated
the right to reside in Switzerland until the end of the procedure, or the extraordinary remedy
of a re-examination, in which the State Secretariat for Migration may accord suspensive
effect to the deportation order.
6.2
On the merits, the State party underlines the soundness of the decisions of the national
authorities and observes, with reference to the Committee’s general comment No. 4 (2017)
on the implementation of article 3 in the context of article 22, that the complainant has not
proven that she runs a foreseeable, personal, present and real risk of being subjected to torture
in case of her return to China. In that regard, the State party maintains that there is no
3
the letter accompanying the medical certificate that, since the negative decision by the Swiss asylum
authorities, her mental health has deteriorated.
The European Court of Human Rights, sitting in a single-judge formation, decided to declare the
application inadmissible. Having regard to all the material in its possession and in so far as it had
jurisdiction to examine the allegations made, the Court considered that the conditions of admissibility
provided for in articles 34 and 35 of the Convention for the Protection of Human Rights and
Fundamental Freedoms were not fulfilled.
3