The complainants are X, born in 1970, and his wife, Y, born in 1978. They submit the communication on their own behalf and on behalf of their three children: M, born in 1995; N, born in 1999; and P, born in 2012. The complainants are nationals of the Russian Federation who applied for asylum in Switzerland, but their applications were rejected. They are facing deportation to the Russian Federation and submit that their deportation would constitute a violation by the State party of article 3 of the Convention. The State party has made the declaration pursuant to article 22 (1) of the Convention, effective from 2 December 1986. The complainants are represented by counsel.
On 23 October 2019, pursuant to rule 114 of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainants and their children to the Russian Federation while their case was being considered by the Committee.
Facts as presented by the complainants
The complainants are nationals of the Russian Federation who married in 1994 and lived in Gudermes, Chechnya, until 2015. During the conflict in Chechnya from 1994 to 1996, X supported the Chechen rebels by providing logistical support and supplies and evacuating the injured and the dead. On 3 August 1996, he was injured by a bomb blast and sustained spinal injuries. He has since been tetraplegic and relied on a wheelchair. In 2006, the Government of the Russian Federation granted amnesty to those who had fought against it in the two conflicts in Chechnya. Although one had to appear in person to request amnesty, X believed that he did not have to, given that he was confined to a wheelchair. During a night in October 2011 and another night in August 2012, armed men wearing uniforms and masks broke into X’s house, kicked him and accused him of aiding Chechen rebels. They told him that, due to his failure to request amnesty, he had been put on a list of those who supported rebels. They interrogated Y about people who allegedly had come to see X and threatened to jail her for concealing her husband’s terrorism-related activities. They also interrogated M. The complainants therefore decided to leave the Russian Federation. In October 2012, the family arrived in Austria and applied for asylum. In 2013, when Y’s mother and her mother’s husband died in a car accident, Y became depressed and suicidal and wanted to return to the Russian Federation. The family returned to the Russian Federation in September 2013.
Upon the family’s return to the Russian Federation, the persecution of X resumed. He was questioned on three occasions, between July and August 2014, by men wearing Chechen security service uniforms about his connections with Chechen rebels, and M was accused of cooperating with illegal armed groups.
In 2014, Y began work as a cook and housekeeper at the house of V.G., who had politically influential relatives. It appeared that one of them was the assassin of the opposition leader Boris Nemtsov. In August 2015, Y was approached by persons pretending to work for the Federal Security Service, who threatened her to pressure her to give information about V.G.’s house. She claims that she was raped by two of them on one occasion.
In April 2015, one of M’s friends joined an illegal armed group. Subsequently, M was detained for 4 to 5 hours, on two occasions, tortured by beating with a baton and electric shocks and interrogated by the Chechen security services about his friend. Between June and October 2015, he received five subpoenas to appear at a police station. Each time, he was questioned for one hour about how he was progressing in drawing out information from his friend and on the latter’s associates and activities. The police threatened to torture or kill M should he not comply. On 26 October 2015, the complainants and their children left Chechnya for Switzerland. On 30 October 2015, X, Y, M, N and P applied separately for asylum in Switzerland.
On 22 September 2017, by two decisions, the State Secretariat for Migration rejected their applications. It found that M was not credible because his statements were contradictory and unsubstantiated. During the initial interview of 11 November 2015, M stated that, between May 2015 and October 2016, he had received three subpoenas, whereas during the second interview of 17 May 2016, he mentioned five subpoenas. During the initial interview, he stated that he had been kidnapped and interrogated two times in a basement, that interrogations concerned his father and his friend and that he had been held there for between two and four hours on the first and second occasions, whereas during the second interview, he stated that he had been detained for four to five hours and interrogated only about his friend. In addition, M once indicated that his friend had joined the armed group in December 2014, whereas his father said that it had occurred in January 2015. At the initial interview, M stated that, during both kidnappings, the journey to the place of detention had not lasted long, whereas at the second interview, he explained that he had been driven to another city for probably two to three hours.
The State Secretariat for Migration doubted that X had been under intelligence observation because of his participation in the events of 1994 to 1996 and that Y, who was a cook for V.G., had been caught between the conflicting interests of the Federal Security Service and high-profile members of the Chechen regime, both of whom had allegedly threatened her personally. The State Secretariat noted that those events had not been mentioned during the initial interview of 11 November 2015, when X and Y exclusively referred to the problems encountered by their son M,3 that the security situation in Chechnya had improved in recent years and that the complainants would be able to get the medical treatment that they needed in Chechnya.
- When she was asked during the interview, Y explicitly denied having had faced problems other than those encountered by her son. ↩
The complainants hired a lawyer to appeal against the decision of the State Secretariat for Migration. The lawyer lodged the appeal on 26 October 2017, submitting a medical report of 6 October 2017 in which the doctor mentioned that Y had tried to die by suicide after receiving the rejection by the State Secretariat and that she had declared that she had been raped in Chechnya. On 30 October 2017, the Federal Administrative Court declared the appeal inadmissible because it had been introduced after the deadline of 25 October 2017. The complainants note that their lawyer’s failure to meet the deadline was “attributable only to his negligent behaviour”.
On 26 September 2017, Y was referred to a psychiatric clinic because she attempted to die by suicide. According to a medical report dated 1 December 2017, she suffered from an acute stress reaction, a serious depressive episode and post-traumatic stress disorder.
On 6 November 2017, X, Y, N and P requested separately the reconsideration of their asylum applications, invoking the human rights situation in Chechnya and the lack of access to adequate medical treatment for X and Y. Medical reports were provided as to Y’s health, in particular a medical report of 7 November 2017 that mentioned that Y, for the first time, had explicitly told the doctors that she had been raped in Chechnya. On 15 November 2017, the State Secretariat for Migration rejected their requests, finding that no new evidence or facts had been presented. In addition, it found that the requests were based on the same grounds as their appeals against the decision of 22 September 2017 and declared that a request for reconsideration was not to substitute an appeal to the Federal Administrative Court. As to the latest medical reports, the State Secretariat noted that the cause of Y’s suicidal impulses, suicide attempts and suicidal intentions was an acute stress reaction after the original negative decision, which did not constitute an obstacle to enforcement. It also noted that X’s and Y’s health issues had already been considered during the initial asylum procedure.
On 24 November 2017, the Federal Administrative Court dismissed M’s appeal. On 15 January 2018, the Federal Court also dismissed the appeals of 18 December 2017 concerning X, Y, N and P for lack of substantial events or evidence since the initial refusal of their asylum applications. They further contested those decisions, alleging, in addition to problems linked to the state of health of X and Y, that M had been deported from Switzerland to Chechnya, where he had been arrested by the police for complicity with terrorist groups and that they had had no news of him since then. On 28 June 2018, the Federal Administrative Court dismissed their request for review, recalling that facts or evidence that did not exist at the time of the judgment could not give rise to a review.
On 18 April 2018, the State Secretariat for Migration rejected the complainants’ request to postpone their deportation on the grounds of X’s health condition, mentioning that the initial review of their asylum applications had found that his health condition was not an impediment to deportation.
On 16 July 2018, X, Y, M, N and P, through their lawyer, submitted a new application for asylum, in particular based on a certificate of 20 May 2018 of the Investigative Committee of Gudermes, which had been obtained by their lawyer in Chechnya, attesting that, in 2015, M had been suspected of aiding terrorist groups and was under a travel ban and letters from their relatives in the Russian Federation, according to which it was dangerous for them to return. By an interim decision of 20 July 2018, the State Secretariat for Migration found that the medical claims had been fully assessed in the decision of 19 December 2017 of the Federal Administrative Court and that the complainants had failed to submit a new application within 30 days from obtaining new information about M being wanted by the authorities. It did not accept that two family letters and one copy of a committee’s information letter, which could easily be counterfeited and did not represent a specific danger to the other complainants, would amount to sufficient substantiation of their allegations. It therefore concluded that, because their new application did not have a chance of succeeding, it would only review it upon their prepayment of the court fees. On 9 August 2018, the State Secretariat for Migration dismissed their applications for failing to pay the procedural fees of 600 Swiss francs.
On 3 October 2018, X, Y, N and P lodged requests for reconsideration of the original decisions of 22 September 2017 by which the State Secretariat for Migration had denied their applications for asylum. They alleged that, in Chechnya, X would not have access to necessary medical aid. By letter of 10 October 2018, the State Secretariat for Migration closed the applications without a formal decision, in accordance with article 111b (4) of the Asylum Act, under which applications for review which are unfounded or repeatedly present the same grounds are to be dismissed without a formal decision being taken. The State Secretariat noted in particular that any obstacles to X’s removal had been examined in detail during the initial asylum procedure and had subsequently been repeated by the complainants in their applications for review and reconsideration.
On 22 April 2019, M, submitted a new request for re-examination based in particular on a letter of 14 October 2014 from his grandmother alleging that the Chechen security services were inquiring about his whereabouts, a reply from the Investigative Committee of Gudermes and a certificate of 4 October 2018 from the Central Office of the Ministry of the Interior of the Russian Federation for Chechnya in Grozny indicating that M was on the wanted list in the Russian Federation for a crime stipulated in article 208 of the Criminal Code, organization of an illegal armed formation or participation in it. The State Secretariat for Migration examined the search confirmation of 4 October 2018 and found that the document was not a standard letter and did not contain a form number. Moreover, preparing such a confirmation indicating that a person was sought was not among the tasks of the issuing authority. In its decision of 22 June 2019, although the new evidence had been submitted late, the State Secretariat noted that it had still examined it in detail. As for the confirmation of 4 October 2018, it expressed doubts as to its authenticity and also as to its probative value, which had to be assessed in the light of the lack of credibility of M’s account during the asylum procedure, the absence of new documented problems since his departure from the Russian Federation in 2015 and the absence of new problems on the part of his parents. As regards the other evidence submitted in support of his application for review, the State Secretariat found that it was provided only in the form of copies and that the letters from family members resembled letters fabricated to support the claims. It therefore dismissed M’s request. On 25 July 2019, the Federal Administrative Court dismissed M’s appeal for failure to pay the procedural fees of 1,500 Swiss francs.
Also on 22 April 2019, X, Y, N and P submitted requests for re-examination of their applications alleging that they would be in danger because of the persecution of M. On 22 June 2019, the State Secretariat dismissed the applications for lack of substantiation. Their appeals were dismissed by the Federal Administrative Court on 25 July 2019 for failure to pay the procedural fees of 1,500 Swiss francs.
The complainants produce two further summons allegedly handed by a local police officer to X’s uncle on 29 July 2019 and September 2019, according to which M had been accused in a criminal case.
On 23 January 2020, X, Y, M, N and P brought their case before the European Court of Human Rights, under article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), claiming that, if deported, they would face a risk of torture or other ill-treatment in connection with M being suspected of aiding terrorist groups in Chechnya. On 18 June 2020, the Court, in a single-judge formation, declared the application inadmissible because, in the light of all the material in its possession and insofar as the matters raised were within its competence, they did not disclose any appearance of a violation of the Convention.
Complaint
The complainants submit that, by forcibly returning them and their children to the Russian Federation, the Swiss authorities would violate their rights under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
M claims that he is wanted by the Russian security services for a crime stipulated in the Criminal Code. He submits that the fact that he was tortured on two occasions by the Chechen authorities in 2015 and that the Chechen police brought subpoenas to his uncle in July and September 2019 proves that, upon return to the Russian Federation, he would be subjected to torture again. The complainants and their other children also claim that they would be subjected to ill-treatment, because M is wanted for alleged participation in an illegal armed group.
Y submits that, because she provided information to the Swiss authorities about the assassin of Boris Nemtsov and previously had contact with the Russian Federal Security Service, she would be persecuted by high-profile officials and might be subjected to sexual violence again. In addition, she claims that she would not be able to receive proper medical treatment in the Russian Federation for post-traumatic stress disorder and other psychological illnesses.
The complainants allege that the refusal of the Federal Administrative Court to examine their and their children’s appeals against the decisions of 22 September 2017 of the State Secretariat for Migration, which were introduced only one day after the deadline, amounts to a violation by the State party of its procedural obligations under article 3 of the Convention. Although conceding that the failure to meet the deadline was a result exclusively of the negligent conduct of their lawyer, they claim that, in the circumstances of the present case, the Swiss authorities were under an obligation to remedy the failure of their lawyer to perform his duties diligently. They maintain that it has been the consistent practice of the Committee not to declare cases inadmissible outright, where complainants argued that their failure to exhaust domestic remedies had been due to their lawyers’ bad advice or unprofessional conduct.4 In this sense, the complainants explain that they do not speak German and are not familiar with Swiss legal processes. Having regard to the complainants’ particularly vulnerable situation,5 it should be concluded that they had done everything possible to avail themselves of their right to appeal before the Federal Administrative Court when they contracted a lawyer.
- R.S.A.N. v. Canada (CAT/C/37/D/284/2006), para. 6.4; E.Y. v. Canada (CAT/C/43/D/307/2006/Rev.1), para. 9.4; and X v. Australia (CAT/C/66/D/749/2016), para. 7.3. ↩
- X is a person with disabilities who needs constant medical treatment. Y has repeatedly tried to die by suicide and, by 26 October 2017, when their appeal was lodged, she had been admitted for a month to a psychiatric clinic, where she was diagnosed with post-traumatic stress disorder, acute stress reaction and serious depressive episode. M is a victim of torture. P is a minor child. ↩
The complainants are of the view that the migration authorities’ failure to take into account Y’s claim as to the sexual violence that she had suffered, and which was mentioned in her appeal against the decision of 22 September 2017, as well as in the family’s subsequent requests for reconsideration of their asylum applications, is also a violation of article 3.
State party’s observations on admissibility and the merits
On 23 April 2020, the State party submitted its observations on the admissibility and the merits of the communication. It notes that the complainants have not exhausted domestic remedies, because they did not comply with the legal time limit for introducing their appeal against the initial decisions of 22 September 2017 on their requests for asylum. The State party mentions that, at the end of their second hearing, the State Secretariat for Migration explained to them orally, with interpretation into Russian, the course of the procedure, including the possibility to appeal if their asylum application was rejected. The decisions of 22 September 2017 also mention the possibility to lodge an appeal and that it must be done within 30 days. The State party notes that the complainants admit that their lawyer introduced the appeal after the deadline.
Insofar as the complainants submit new evidence to the Committee, the State party notes that it is not disputed that this evidence has never been submitted to the national authorities and that it may be the subject of an application for review. The State Secretariat for Migration, as the authority responsible for dealing with new facts, may grant suspensive effect to this extraordinary appeal procedure. In all cases, a decision to suspend enforcement of a removal order is taken after an individual examination of the case. In the case at hand, both the State Secretariat and the Federal Administrative Court provisionally granted such suspensive effect following the complainants’ requests for review. For the State party, an application for review is not devoid of any suspensive effect and is not inappropriate.6 Therefore, it considers that the complainants have not exhausted domestic remedies.
- Arkauz Arana v. France (CAT/C/23/D/63/1997), para. 6.1. ↩
On the merits, the State party contends that not only does it appear from the minutes of the hearings that the complainants were able to present their case in Russian and obtained the relevant information in that language, but they were also in a position to instruct a lawyer 12 to 13 days before the expiry of the statutory 30-day time limit for an appeal. A lawyer therefore had sufficient time to lodge the appeal within the deadline.
The State party notes that the complainants have not produced, either before the national authorities or before the Committee, evidence from independent sources concerning the alleged acts. In particular, before the Committee, X stated that the attacks had taken place before he left for Austria in 2011, whereas, according to his statements made in the context of the asylum procedure, they had taken place on three occasions in 2012; he provides no explanation in this regard. Y presented before the Committee, among other things, a medical report dated 3 April 2018 that she had not brought to the attention of the Swiss authorities, even though her lawyer had asked the State Secretariat for Migration to suspend the execution of the removal order on 10 April 2018, a request that was motivated exclusively by X’s state of health. Moreover, there are significant contradictions between the medical report of 3 April 2018, which mentions rapes by members of the Government of Chechnya, and the statements made by Y before the Committee to the effect that she was raped by agents of the Federal Security Service of the Russian Federation. In addition, M does not explain how the assessment of the evidence that he produced in the context of the asylum proceedings was flawed.
Complainants’ comments on the State party’s observations on admissibility and the merits
On 13 November 2020, the complainants submitted comments on the State party’s observations on admissibility and the merits, reiterating the statements made in their initial communication. They acknowledge that the allegation that M was deported by the Swiss authorities to Chechnya is not true and explain that this information was included by their lawyer without having consulted with them.7 As they do not speak German, they could not verify the accuracy of the information submitted by their lawyer to the migration authorities.
- The same lawyer who missed the deadline for introducing an appeal against the decision of the State Secretariat for Migration of 22 September 2017. ↩
The complainants clarify that, before the Committee, they made only two allegations of violations by the State party of its obligations under article 3 of the Convention, namely, the rejection by the Federal Administrative Court of their appeal against the refusal to grant them asylum because their lawyer had missed the deadline by one day and the fact that the Swiss authorities did not duly examine the medical documents produced by Y indicating that she had been raped in Chechnya by State agents. The reference in their communication as to the risk of torture and other ill-treatment in the Russian Federation was not the subject of their complaint before the Committee, and the State party did not need to respond to it as a separate grounds for a violation of article 3 of the Convention.
As to the medical report of 3 April 2018 mentioning that Y had been raped, which is not the only document making reference to sexual violence, the complainants explain that they had already declared in their communication that they themselves did not produce that report before the State Secretariat for Migration or before the Federal Administrative Court. At the same time, the report was on file with the Office for Migration and Integration of the Canton of Aargau, which was responsible for carrying out their deportation order and which was in contact with the State Secretariat for Migration.
In their initial communication, the complainants did not raise before the Committee the issue of a violation of article 3 of the Convention on the basis of risk of prosecution because M was under investigation for terrorist acts in the Russian Federation. In this connection, the complainants introduced a complaint before the European Court of Human Rights, which was rejected. Given that the State party has already commented on that allegation, the complainants believe that the Committee may consider that information as separate grounds for a violation of article 3 of the Convention. Nevertheless, the complainants mentioned in their application before the Court that they had submitted a communication to the Committee, so they assume that that may be the reason the Court declared their application inadmissible, which means that the Court did not examine the merits of their complaint. In addition, the complainants declare that the issue brought before the Court is different from that before the Committee.
Referring to the State party’s allegation that the new evidence presented before the Committee should be the subject of a new review procedure before the domestic authorities, the complainants submit that they are not obliged to initiate a new review procedure, because it would not have automatic suspensive effect and therefore is not an effective remedy within the meaning of article 22 (5) (b) of the Convention.
Consideration of admissibility
Before considering any complaint submitted in a communication, the Committee must decide whether it is admissible under article 22 of the Convention.
The Committee recalls that, under article 22 (5) (a) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the same matter has not been and is not being examined under another procedure of international investigation or settlement. The Committee recalls its jurisprudence according to which examinations by the European Court of Human Rights constitute such a procedure.8
- For example, A.A. v. Azerbaijan (CAT/C/35/D/247/2004), para. 6.7. ↩
The Committee notes that the State party has not raised a plea of inadmissibility under article 22 (5) (a) of the Convention, on the basis that the same matter has already been examined by the European Court of Human Rights. The Committee also takes note of the complainants’ observation that their application before the Court did not concern the same matter, because it was grounded on a risk of torture or ill-treatment triggered by pending proceedings in the Russian Federation against M on suspicion of aiding terrorist groups in Chechnya. The complainants indicate that they did not raise that claim in the initial communication before the Committee, although the State party commented on it. The Committee takes note of the complainants’ allegation that the limited reasoning used by the Court to declare inadmissible their application would not allow the Committee to conclude that the Court gave sufficient consideration to the merits of the complaint.
The Committee recalls its consistent jurisprudence according to which it does not consider any complaint from an individual under article 22 (5) (a) of the Convention unless it has ascertained that the same matter has not been, and is not being, examined under another procedure of international investigation or settlement.9 The Committee considers that a complaint has been or is being examined by another procedure of international investigation or settlement if the examination by the other procedure related or relates to the same matter within the meaning of article 22 (5) (a), which must be understood as relating to the same parties, the same facts and the same substantive rights.10
In the present case, the Committee notes that, in their initial communication, the complainants did not include their claim in respect of an alleged risk of torture or ill-treatment triggered by criminal proceedings against M in the section of the application on the risk of violation of article 3 of the Convention, but presented it under a separate heading. However, insofar as they alleged a real, personal and foreseeable risk of torture or ill-treatment if they were to be returned to the Russian Federation, the Committee considers that the complainants raised in substance a violation of article 3 of the Convention. The Committee takes note of the complainants’ argument that they invoked different grounds in their application before the European Court of Human Rights. However, the Committee notes that, in their application before that Court, the complainants also claimed that they would face a risk of torture or other ill-treatment should they be deported to the Russian Federation. Accordingly, in the light of the information contained in the case file, the Committee concludes that the complainants’ application submitted to the European Court of Human Rights on 23 January 2020 concerned the same persons, was based on the same facts and related to the same substantive rights as those invoked in the present communication. The Committee therefore proceeds to consider whether the application to the European Court of Human Rights constitutes an examination in the sense of article 22 (5) (a) of the Convention.
In the present case, the Committee observes that the European Court of Human Rights declared the complainants’ application inadmissible, as it considered that, in the light of all the material in its possession and insofar as the matters raised were within its competence, they did not disclose any appearance of a violation of the European Convention on Human Rights. In the light of the information provided by the complainants, and in the particular circumstances of the present case, the Committee considers that the decision of the European Court of Human Rights was not solely based on mere procedural issues, but on reasons that indicate a sufficient consideration of the merits of the case.11 Accordingly, the Committee considers that the claim raised by the complainants regarding the alleged risk that they would face if deported to the Russian Federation because of the alleged pending criminal proceedings against M is inadmissible in accordance with article 22 (5) (a) of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- For example, E.E. v. Russian Federation, paras. 8.2–8.4; M.Z. v. Belgium (CAT/C/67/D/813/2017), para. 10.4; and M.T. v. Sweden (CAT/C/55/D/642/2014), para. 8.5. ↩
The Committee therefore decides: (a) That the communication is inadmissible under article 22 (5) (a) of the Convention;