La Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants a été signée le 10 décembre 1984 et ratifiée par 158 Etats (état au 29 septembre 2015). Elle est entrée en vigueur le 26 février 1987 en Suisse. Elle représente l’instrument international le plus abouti qui codifie les standards et les pratiques protégeant l’individu contre la torture et autres peines ou traitements cruels, inhumains ou dégradants.
Le Comité contre la torture est un organe composé de 10 experts indépendants qui veillent au respect de la Convention contre la torture et autres peines ou traitements cruels, inhumains ou dégradants par les États parties. Ce contrôle se fait par le biais des rapports périodiques des Etats et par le biais des communications individuelles lorsque les Etats ont accepté la compétence du Comité pour les examiner. La Suisse a reconnu la compétence du Comité pour examiner des communications individuelles.
A. N. v. Switzerland, Communication no. 742/2016, 3 August 2018
The Committee against Torture held that the expulsion of our client, an Eritrean torture survivor to Italy, where he risked being deprived of the medical care necessary to treat his physical and psychological trauma, and where he would face street destitution, amounted to breaches of Articles 3, 14 and 16 of the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. In its decision of 3 August 2018, the Committee noted that the Swiss authorities had failed to properly assess the risks to the complainant, and that the precarious circumstances he would face in Italy would endanger his life and “leave him no reasonable choice but to seek protection elsewhere, exposing him to a risk of chain refoulement to his home country.”
J.D. v. Switzerland, Communication no. 700/2015
The compainant is a Syian asylum seeker. He was imprisoned in Syria for 5 years during which he was regularly tortured and forced to witness the torture and summary execution of fellow detainees. In 2012 and he escaped when the prison was bombed by an armed opposition group. He was seriously injured by a granade explosion. He is suffering from severe psychological trauma (PTSD) and has complex medical needs due to the dozens of pieces of schrapnel embedded in his left leg.
In January 2015 he requested asylum in Switzerland where his two brothers, both recognized refugees, are living. The Swiss authorities ordered him expelled to Italy under the Dublin III Regulation without taking into account his extreme vulnerability as a torture survivor with serious psychological and physical medical needs. He has undergone multiple surgeries in Switzerland which have not succeeded in removing all of the schrapnel embedded in his left leg, and additional surgical interventions are currently scheduled.
The CSDM filed a complaint to the Committee against Torture alleging breaches of the prohibition of non-refoulement under Article 3 and Article 16 of the UN Convention against Torture, together with Article 14 (right to rehabilitation). This is due to both the destitution the complainant face in Italy and his lack of access to appropriate services necessary for his rehabilitation, given his particular physical and psychological needs.
Redress Trust, a charity based in London, supported our litigation of this case with a legal opinion on Article 14 of the Convention against Torture.
Despite the decision of the Committee against Torture in the similar case of A.N. v. Switzerland, Communication 742/2016, where the Committee found that the expulsion of an Eritrean torture survivor to Italy would breach Articles 3, 14 and 16 of the Convention against Torture, and despite a request to the Swiss migration authority (the State Secretariat for Migration SEM) to reconsider his case in light of A.N. v. Switzerland, the Swiss authorities continue to refuse to cancel Mr. J.D.’s expulsion to Italy.
Therefore, 4 years after entering Europe, Mr. J.D., a victim of war and torture in Syria, has still has had no access to an asylum procedure in any country to determine his need for international protection. In the mean time, his wife and two young children are languishing in a refugee camp in Greece, waiting for his situation to be resolved, so that they can join him. Somewhere.
For a critique of Switzerland’s practice of blanket expulsions under the Dublin Regulation, see our submission to the United Nations Human Rights Council below: