CAT/C/66/D/820/2017
seekers, in particular by failing to have its embassy personnel take additional investigative
steps.
The complaint
3.1
The complainant contends that her deportation to Togo would constitute a violation
by Switzerland of her rights under article 3 of the Convention. She claims that, owing to her
political activities in Togo, she faces a personal, present and real risk of being subjected to
treatment contrary to the Convention. She states that she risks being subjected to inhuman
and degrading treatment because of her prominent position as the section secretary for her
party, which is, beyond question, well known to the authorities. She adds that she was
arrested and escaped and would therefore face heavy penalties if she were to return. The
complainant refers to harsh prison conditions and the manipulation of the justice system in
Togo, where she risks being sentenced to a term of over 10 years as a political prisoner. She
adds that, in Togo, prisoners are tortured to extract information from them.
3.2
In addition, the complainant submits that it is common public knowledge that the
Togolese authorities closely monitor all political protests; therefore, they would be in a
position to easily identify her if she returned to Togo.
State party’s observations on admissibility and the merits
4.1
On 12 October 2017, the State party submitted observations on the admissibility and
merits of the complaint. It recalled the facts and the proceedings undertaken by the
complainant in Switzerland with a view to obtaining asylum, noted that the asylum
authorities have duly considered the complainant’s arguments and stated that the
complaint’s submission does not include any new information that might invalidate the
asylum authorities’ decisions.
4.2
Regarding the admissibility of the complaint, the State party is of the opinion that
the complainant has not exhausted all available domestic remedies and that her complaint
should therefore be found inadmissible.
4.3
The State party recalls that the State Secretariat for Migration rejected the
complainant’s asylum application, pursuant to its decision of 7 March 2016. On 11 April
2016, the complainant submitted an appeal to the Federal Administrative Court against the
decision issued by the State Secretariat for Migration. However, this appeal was submitted
outside the legally established time limit. On that same date, she requested an extension of
the appeal deadline. The request was dismissed because the complainant was unable to
justify it in accordance with Swiss law, which permits such extensions only if the
complainant, or his or her agent, through no fault of his or her own, has been prevented
from acting within the allotted period.1
4.4
The State party submits that, if the complainant had filed her appeal within the
prescribed time limit, she could have claimed a violation of the Convention. It also submits
that a complaint to the Committee cannot be substituted for a domestic remedy found to be
inadmissible because the deadline for filing an appeal has passed.
4.5
Regarding the merits of the case, the State party submits that, according to the
Committee’s jurisprudence and paragraphs 6 to 8 of its general comment No. 1 (1997) on
the implementation of article 3 of the Convention in the context of article 22, the
complainant must establish that she faces a personal, present and real risk of being
subjected to torture if returned to her country of origin. The existence of such a risk must be
assessed on grounds that go beyond mere theory or suspicion; it is also necessary for facts
to be adduced that indicate that the risk is serious, 2 including: (a) evidence of the existence
of a consistent pattern of gross, flagrant or mass violations of human rights in the State
concerned; (b) claims of torture or ill-treatment in the recent past and the existence of
1
2
GE.19-12298
Switzerland, article 24 (1) of the Federal Act of 20 December 1968 on administrative procedure,
172.021.
For information on the factors to be taken into account in order to establish that such a risk exists, see
paragraph 8 of the Committee’s general comment No. 1. See also paragraph 49 of the Committee’s
general comment No. 4 (2017) on the implementation of article 3 in the context of article 22.
3