Depriving a torture victim of medical treatment is a motive for non-refoulement

The case involves an Ethiopian national who was politically active on behalf of the Oromo minority in his country. Because of his political activity, he was imprisoned and regularly tortured by the Ethiopian authorities for over a year. After his release, and still under threat of re-arrest and imprisonment, A.H. fled his country across Libya and then across the Mediterranean on an unseaworthy vessel. He was rescued by the Italian navy but was in a critical state (severe dehydration and blood poisoning by salt ingestion) which required three months’ treatment in hospital. He applied for asylum in Italy and was granted refugee status.

Despite his status as a vulnerable refugee, A.H. was left without shelter and deprived of medical care. He was living in the streets without the means to feed himself properly or buy the medicines he needed. He therefore travelled to Norway in order to obtain the medical treatment he urgently needed, and on arrival he was immediately hospitalized in intensive care as he was still suffering from the severely disabling after-effects of the torture he has been subjected to in Ethiopia. After a few months in a hospital and when his condition had stabilized, he was returned to Italy, where he again found himself on the streets despite the guarantees the Italian authorities had given to Norway.

In acute distress, he then travelled to Switzerland, where the legal advice service of Caritas Switzerland (Fribourg) agreed to represent him. The Swiss migration authority – the State Secretariat for Migration (SEM) – first initiated a Dublin Regulation procedure to return him to Italy. Subsequently, this procedure was annulled[2] and a new procedure launched for his readmission to Italy under a European readmission agreement relating to recognized refugees. This procedure resulted in a decision to return him to Italy. At no time did the SEM inform the Italian authorities of Mr. A.H.’s vulnerability or specific needs as a torture victim, nor did it take the trouble to check that suitable care was available in Italy. In a judgement dated 1 March 2016 the Federal Administrative Tribunal (TAF) confirmed Mr. A.H.’s return to Italy, also without having conducted the individualized assessment of the risks he faced on return to Italy.

The Centre Suisse pour la Défense des Droits des Migrants (CSDM) submitted the case to the Committee against Torture on 8 July 2016 arguing that the principle of non-refoulement of articles 3 and 16 CAT had been infringed. The CSDM also alleged that the expulsion would interfere with A.H.’s right to rehabilitation as a torture victim under article 14 CAT.

The Committee found that the Swiss authorities had a duty to carry out “an individual examination of the real and personal risks to which the applicant would be exposed in Italy, considering specifically his particular vulnerability as a torture victim” (§ 9.9 of the decision). In this connection the Committee observed that Switzerland “took no steps to ensure that in Italy the applicant would have access to rehabilitation services suitable for his needs, so that he could exercise his right to rehabilitation as a torture victim. In view of this, the Committee holds that the State party did not examine, in an individual and sufficiently thorough manner, the applicant’s personal experience as a torture victim and the foreseeable consequences of his compulsory return to Italy”[3] (§ 9.11 of the decision).

In light of this analysis the Committee held that returning A.H. to Italy would constitute a violation of article 3 CAT, that is, a violation of the principle of non-refoulement.

Importantly, the CAT reaffirmed its position that the non-refoulement principle applies equally to cruel, inhuman and degrading treatment. In fact, the CAT rejected in no uncertain terms Switzerland’s objections in this regard noting that such an interpretation would be entirely consistent with the protection afforded in the Swiss legal order: “The Committee notes that the State party’s argument concerning the inadmissibility of the complaint is contradicted by its own Constitution which provides expressly for the extension of the non-refoulement principle to cruel and inhuman treatment or punishment” (§ 8.5 of the decision).

The references to the Dublin Regulation in para. 9.2 of the decision are unfortunately misleading. While the Swiss authorities initially sought to expel Mr A.H. to Italy under the Dublin II Regulation, they subsequently annulled this decision when it came to light that the applicant had obtained refugee status in Italy before moving onwards, first to Norway, then to Switzerland. Therefore, the legal basis for the Swiss expulsion decision was a readmission agreement (Accord éuropéen sur le transfert de la responsabilité de réfugiés du 16 octobre 1980 RS. 0.142.305) which, incidentally, does not affect the reasoning of the CAT’s decision under Art. 14 but it would have been preferable if this had been made explicit.

A.H. is still in Switzerland. The State Secretariat for Migration (SEM), i.e. the migration authority, reopened his asylum case by decision of 1 February 2019 making specific reference to the CAT decision of 17 December 2018. Thus, A.H. is formally speaking again an asylum seeker with an N-Permit.

Gabriella Tau & Boris Wijkström (CSDM)

[1] A.N. v. Switzerland, Communication 742/2016, § 8.10 (a case also litigated by CSDM).

[2] The Dublin Regulation applies only to asylum seekers, not to recognized refugees.

[3] Translations from the original in French by the CSDM.