CASE OF X v. SWITZERLAND
Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Sri Lanka)
Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova
5. The applicant, Mr X, is a Sri Lankan national of Tamil origin, who was born in 1979 and resides in Switzerland. 6 7. During the 1990s the applicant was a member of the Liberation Tigers of Tamil Eelam (“the LTTE”) and participated in armed resistance against the Sri Lankan Government. In late 2003 he was detained in Colombo for about three months. The applicant stated that during this time he had been ill-treated. He furthermore stated that he had been threatened and subjected to surveillance after his release. 8. On 2 April 2007 the applicant left Sri Lanka for Italy, where he lived until May 2009. His wife, who had remained in Sri Lanka, had allegedly been subjected to searches and questioning by the Sri Lankan police and security forces. She left Sri Lanka on 13 March 2009 and joined the applicant in Italy. 9. On 25 May 2009 the applicant and his wife illegally entered Switzerland and applied for asylum on grounds of political persecution in Sri Lanka. The applicant emphasised that, as a member of the LTTE, he had participated in armed resistance against the Government of Sri Lanka and had been ill-treated in detention. 10. On 8 December 2009 the applicant’s wife gave birth to their first child. 11. In a decision taken on 1 June 2011, the Federal Migration Office (“the FMO” – now the State Secretariat for Migration) held that the applicant and his wife did not fulfil the criteria necessary to obtain refugee status because they had failed to present sufficient evidence in support of their claim. Furthermore, the FMO rejected the applicant’s asylum application and ordered the execution of their deportation order to Sri Lanka, finding it enforceable, legal and reasonable (möglich als auch rechtmässig und zumutbar). 12. On 9 June 2011 the applicant’s wife gave birth to their second child. 13. On 5 July 2011 the applicant and his wife appealed against the FMO’s decision to the Federal Administrative Court, requesting that it annul the deportation order according to which the authorities of the Canton of St Gallen had to deport them no later than 27 July 2011, by force if necessary (pursuant to points 3, 4, and 5 of the operative part of the FMO’s decision of 1 June 2011). However, the applicant did not challenge the FMO’s decision refusing to grant him asylum or to recognise him as a refugee (points 1 and 2 of the operative part of the FMO’s decision of 1 June 2011). 14. In its judgment of 1 October 2012, the Federal Administrative Court rejected the applicant’s appeal on the merits. The court held that the FMO had violated the applicant’s right to be heard by refusing to grant him and his wife access to certain documents in its possession, namely a country report of 22 December 2011 on the conditions in Sri Lanka, which had been established during an official mission of the FMO in September 2010. Nevertheless, since the FMO had provided the parties with access to these documents at a later date, the Federal Administrative Court concluded that the original violation had been remedied. 15. The Federal Administrative Court further held that there was no impediment to enforcing the deportation order. In particular, weighing the preponderance of the evidence (mit beachtlicher Wahrscheinlichkeit), it held that neither the applicant’s submissions nor the official file indicated that he or his wife would be subjected to treatment contrary to Article 3 of the Convention if they returned to Sri Lanka. 16. On 2 November 2012 the applicant and his wife applied to the Federal Administrative Court to have its judgment of 1 October 2012 reconsidered. The applicant claimed that the court had not adequately considered all the relevant evidence. He also submitted a copy of an LTTE magazine cover from 1997, which included his photograph. He also submitted a letter from his sister dated 19 October 2012, as well as confirmation from the Human Rights Commission of Sri Lanka that he had lodged a complaint with that institution on 5 October 2012. 17. In its judgment of 27 November 2012, the Federal Administrative Court rejected the applicant’s application for reconsideration, holding that there were insufficient grounds to reopen the case. It emphasised that the application for reconsideration was an extraordinary remedy, which could not be used to submit facts which could have been raised during the ordinary proceedings. 18. On 21 August 2013 the applicant and his family were deported to Sri Lanka. Upon arrival at the airport in Colombo, they were detained and questioned for thirteen hours. Following that, the applicant’s wife and children were released, whereas the applicant was incarcerated and illtreated in Boosa Prison. According to his wife, when she visited the applicant in prison she noted that his face appeared swollen and concluded that her husband had been beaten. 19. On 6 December 2013 a representative of the Swiss Embassy and a senior protection officer of the UNHCR visited the applicant in the prison governor’s office. During this visit, the representatives noted that the applicant was visibly afraid to speak and that a free conversation with him was impossible. 20. Following this, the applicant’s family was relocated to Switzerland. 21. On an unknown date the applicant was transferred to a so-called “rehabilitation” prison, from which he was released on 12 April 2015. 22. After his release, the applicant applied for a visa on humanitarian grounds to the Swiss authorities in order to return to Switzerland and submit a fresh asylum application. On 21 April 2015 the FMO allowed the applicant to return to Switzerland and he did so on 25 April 2015. 23. On an unspecified date the applicant submitted a fresh asylum application to the Swiss authorities and on 26 June 2015 his application was granted. 24. In his application to the Court, the applicant pointed out that in a parallel case another Tamil, Mr Y, had been deported from Switzerland to Sri Lanka on 25 July 2013, that is to say almost a month before the applicant’s own deportation. According to Y’s lawyer, upon his arrival in Sri Lanka he had been detained and subjected to ill-treatment which had led to his hospitalisation. 25. Furthermore, on 2 August 2013 Y’s lawyer had written to the Swiss Minister of Justice and to the director of the Migration Office asking that all deportations of Tamils to Sri Lanka be suspended. 26. The director of the FMO commissioned an external investigation into the expulsions of the applicant and Y. The report delivered by Prof. W. Kälin on 23 February 2014 concluded that, due to a combination of several shortcomings of the Swiss authorities, the individual risk of illtreatment of the two Tamils in Sri Lanka had not been properly assessed. 27. In addition, the UNHCR also carried out an assessment of the decision-making process of the FMO in the applicant’s case and identified a number of shortcomings. These consisted of, in particular, the prolonged lapse of time between the asylum application (May 2009) and the execution of the deportation order (August 2013); the fact that the situation in Sri Lanka had changed considerably after the end of the civil war in 2009; the involvement of several FMO employees in different phases of the decision-making process throughout an extended period of time; the fact that the applicant’s hearing had been partly held in a superficial manner and that the authorities had not conducted additional investigations. 28. The results of both reports were made public on 26 May 2014. 29. On 10 December 2013 the FMO adopted an internal report on the arrest of the applicant by the Sri Lankan authorities. 30. After the end of the civil war in Sri Lanka, in 2011 Switzerland resumed deportations of Tamils to that country. The practice was again stopped in September 2013, following the expulsion and ill-treatment of the applicant and Y. 31. Subsequently, the FMO analysed the situation in Sri Lanka in the light of the results of its missions to that country, the case-law of international courts, the practices of other countries and the reports of international organisations. As a consequence, the FMO has modified its practice concluding that the assessment of risk would now be carried out following criteria developed by the European Court of Human Rights in all cases involving deportations or Sri Lankan nationals.