UN Committee against Torture: Expulsion to Chile amounts to violation of Article 3 CAT

Thursday, January 2, 2020

On 2 January 2020, the Committee Against Torture (the Committee) published its views in Flor Agustina Calfunao Paillalef v Swizterland, CAT/C/68/D/882/2018, concerning the risk of torture and inhuman and degrading treatment in the event of return to Chile.

The applicant is a Chilean national and a member of the Indigenous Mapuche people. She argues that Indigenous Mapuche peoples have been victims of violence from Chilean authorities, and that her family have experienced a number of violent acts as a result of their identity. In 1996 the applicant moved to Switzerland and briefly returned to Chile in 2008 to collect her niece. In November 2008, she made an application for international protection for herself and her niece due to fear for her life and physical and psychological integrity. This application and subsequent appeals were rejected and the State Secretariat for Migration notified the applicant that she was to leave the country. The applicant complained that her return to Chile was contrary to Article 3 of the Convention against Torture as she would be exposed to a risk of torture or other forms of inhuman and degrading treatment from both the Chilean authorities and private individuals.

The Committee first noted that, under Article 3 CAT, states must take into account all evidence of gross patterns or mass violations of human rights to determine whether a risk of torture may exist. In this instance, the Committee noted that while there was not a situation of general violence, it did acknowledge the allegations of violations against Mapuche people and the long history of indigenous people’s rights violations. There must nevertheless be a personal risk to the applicant. The Committee noted, inter alia, that the applicant feared she would be affected by abusive implementation of anti- terror legislation due to denunciations she had previously made against the State.

The Committee considered that on the basis of the applicant’s ethnic origin, the persecution of her family, together with her previous denunciations against the State at an international level, that there was a foreseeable risk that she would face torture or inhuman and degrading treatment upon return. It added that States should exercise due diligence to prevent and investigate acts by private individuals amounting to torture. As a result of the applicant’s personal and family context, the Committee concluded that her return would amount to a violation of Article 3 CAT. The Committee added that the State must reconsider the applicant’s asylum application and refrain from expelling her while it is under consideration.

Based on an unofficial translation by the EWLU team. Photo: Melissa Robison, June 2012, Flickr (CC)

This item was reproduced with the permission of ECRE from the ELENA Weekly 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 pusexblished but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

Inhuman or degrading treatment or punishment
Persecution Grounds/Reasons
Personal circumstances of applicant