UN CAT rules against the return of a refugee and victim of torture from Switzerland to Italy

Thursday, December 6, 2018

On 6 December 2018, the UN Committee against Torture decided in a case concerning the return of an Ethiopian refugee from Switzerland back to Italy.

The applicant had been imprisoned and tortured in Ethiopia for his membership in the Oromo Liberation Front. He fled to Italy, where he was recognised as a refugee and received urgent medical care. The medical conditions resulting from his torture were never addressed. After realising he would not be able to receive adequate treatment, he travelled to Norway, where he was hospitalised, but then sent back to Italy. He once again left Italy to go to Switzerland, where his asylum request was denied and a return decision to Italy was issued. Following several legal challenges, during which the applicant tried to contest the decision to return him on the basis of several medical reports and limited access to healthcare and medication in Italy, he brought his case before the UN Committee against Torture.

The Swiss government claimed that the applicant’s argument centres on the possible cruel, inhuman and degrading treatment, without any reference to the element of torture required by Article 3 of the Convention against Torture (CAT). According to the Committee, however, the absolute interdiction of both notions in national and international instruments and jurisprudence cannot be ignored. Making a specific reference to its General Comment no. 2, it noted that the obligations arising from Article 3 extend to situations of cruel, inhuman and degrading treatment, as Articles 2 and 16 of the Convention are intrinsically linked.

The Committee considered that, in view of General Comment no. 4, the burden of proof lied with the Swiss authorities, as the applicant was not in a situation to substantiate the arguments regarding the potential treatment he will be subjected to. The authorities did not properly examine the situation the applicant would be exposed to upon his return to Italy, nor whether this situation would generate consequences that would amount to prohibited treatment. They notably failed to take into account the risks involved, in light of the applicant’s submission of medical attestations and reports on the situation in Italy, with regard to which the Committee noted the lack of a torture victim rehabilitation system. In addition to this, the applicant’s health or victim of torture status was not mentioned in the request that was sent to Italy. Lastly, the complainant’s previous experience in Norway, where assurances were given by the Italian authorities but were not eventually upheld, should also have been considered in the Swiss authorities’ assessment.

The Committee concluded that the Federal Administrative Tribunal assumed that the applicant would generally be safe in Italy instead of examining his particular vulnerability as an asylum seeker and victim of torture. The return was found to violate Article 3 of the CAT and Switzerland was instructed to abstain from the enforcement of the return decision.

Based on an unofficial translation by the ELENA Weekly Legal Update. Many thanks to Boris Wijkström, lawyer at the Centre Suisse pour la Défense des Droits des Migrants, for bringing this case to our attention.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE. s.



Burden of proof
Health (right to)
Inhuman or degrading treatment or punishment
Medical Reports/Medico-legal Reports
Vulnerable person