CAT/C/63/D/717/2015
a request for him to testify as a witness, they were not relevant to the complainants’ asylum
application.
2.16 On 6 May 2013, the complainants filed an application with the Federal Office for
Migration for a review, on the basis of new medical reports attesting that A.Sh., Z.H. and
their son Ash.Sh. suffered from post-traumatic stress disorder, and of Z.H.’s account of
rape. In particular, the complainants provided a number of medical reports from the
University Clinic for Psychiatry and Psychotherapy in Bern (dated 31 August 2012, 23
January 2013, 11 April 2013 and 19 March 2013), stating that Z.H. suffered from posttraumatic stress disorder as a result of rape. They argued, inter alia and with reference to
information from the International Committee of the Red Cross protection department in
Grozny dated 31 January 2013, that there were no hospitals in Chechnya that could offer
treatment for post-traumatic stress disorder. Therefore, medical obstacles rendered the
enforcement of their removal order unreasonable. On 6 February 2014, the Federal Office
for Migration rejected the complainants’ application for a review, as it considered that Z.H.
had had many opportunities during her asylum procedure to mention other possible grounds
for seeking asylum and she had not done so. Furthermore, the Federal Office for Migration
noted that the complainants only mentioned their psychological problems after the final
judgment by the Federal Administrative Court and in view of their expulsion. The Federal
Office for Migration also concluded that treatment for post-traumatic stress disorder for the
complainants pursuant to the medical reports submitted by them was available in their
country of origin, and that therefore they were not dependent on such treatment in
Switzerland.
2.17 On 11 March 2014, the complainants appealed against the second negative decision
by the Federal Office for Migration, to the Federal Administrative Court. In an interim
decision dated 17 March 2014, the Federal Administrative Court suspended the
enforcement of the expulsion order. On 28 September 2015, the Federal Administrative
Court dismissed the complainants’ appeal, as it considered that their psychological
problems were insufficient to apply the non-refoulement principle, as there was no
obligation on States to stop the enforcement of a removal order when the person concerned
had suicidal ideation. If necessary, adequate measures could be taken to avoid suicidal
tendencies during the removal process. Furthermore, the complainants could obtain
treatment for post-traumatic stress disorder in the Russian Federation because the internal
flight alternative would be available to them.
The complaint
3.1
The complainants claim that, if returned to the Russian Federation, they would be
exposed to torture. Therefore, Switzerland would be in violation of article 3 of the
Convention, in particular the non-refoulement obligation. They have provided sufficient
evidence to support their claims, including medical reports confirming that A.Sh. was
subjected to torture during his interrogation at the Oktyabrsky police station on 2 August
2010. The fact that he did not correctly explain in his initial testimony the origins of his
gunshot wound was justified by his fear of being considered a Chechen insurgent by the
Swiss authorities. The approach taken by the Federal Administrative Court was perfunctory,
as it dismissed the copies of the summonses as ineligible evidence (see para. 2.15 above)
but expected the complainants instead to make available, with the help of A.Sh.’s uncle,
evidence from the Chechen authorities of the unlawful closure of his shop, the confiscation
of the car and the search of their apartment without a warrant. The uncle would be putting
himself in danger and drawing the attention of the other police officers to himself if he tried
to obtain such evidence. The summonses issued in A.Sh.’s name served the sole purpose of
ensuring that he appeared before the authorities.
3.2
As regards the allegations by Z.H. of rape, the complainants recall the Committee’s
jurisprudence 10 according to which rape constitutes the infliction of severe pain and
suffering perpetrated for a number of impermissible purposes and thus amounts to torture.
They consider that the State party’s authorities applied a very high standard of proof in this
regard and refer to several decisions of the Committee in which it considered that the delay
10
Reference is made to V.L. v. Switzerland (CAT/C/37/D/262/2005), para. 8.10.
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