CAT/C/63/DR/698/2015 Advance unedited version
asylum proceedings; and that the legal advice service representative (Hilfswerkvertretung)
had recommended after her second interview in March 2013 that the FOM obtain a
psychological expert report yet no such steps were taken by the authorities. It also takes note
that in one of the substantive interviews the legal advice centre representative was male,
which made it more difficult for her to recount the details of the various instances of rape. It
further notes the first complainant’s assertion that the lack of medical evidence cannot be
considered as diminishing her credibility, because she was unable to submit a full medical
certificate proving her trauma from the rape due to the authorities denying her access to such
medical assessment and treatment. It also notes her assertion that there can be no doubt
regarding the credibility of her marriage which was established by the Red Cross and her
husband’s relatives.
9.6
The Committee recalls its General Comment No.4 on the implementation of article 3,
wherein it states that in the procedure of assessment, the State party should provide the person
concerned with fundamental guarantees and safeguards, especially if the person is in a
particularly vulnerable situation. In particular, an examination by a qualified medical doctor,
included as requested by the complainant to prove the torture that he/she has suffered, should
always be ensured, regardless of the authorities assessment on the credibility of the
allegation,36 so that the authorities deciding on a given case of deportation are able to
complete the assessment of the risk of torture on the basis of the result of the medical and
psychological examinations, without any reasonable doubt.
9.7
The Committee notes the first complainant’s assertion that she is unable to submit a
full medical certificate proving her trauma from rape. It takes note that it is undisputed that
the first complainant was examined and issued a psycho-social service report in July 2015;
that she was able to undergo psychological treatment in June 2016; that she has been in
regular psychological treatment since then and that another psycho-social service report was
issued on 1 February 2017. It further notes the State party’s argument that the medical report
of 1 February 2017 makes the diagnoses of adjustment disorders, difficulties related to the
fact of being victim of crime and terrorist acts as well as difficulties related to the exposure
to a disaster, war and other hostilities which are not entirely new elements as at least two of
these diagnoses were made already in the complainant’s earlier medical report of 27 July
2015 by the same psychologist. In this regard, the Committee notes the State party’s assertion
that the diagnoses made do not in themselves prove the ill-treatment, notably the rapes
alleged by the first complainant, which were considered to be improbable by the national
authorities; that the report of 1 February 2017 contains anamnesis established solely on the
basis of the first complainant's statements and that regarding the question as to whether she
showed signs of torture or ill-treatment, the doctors only noted that the symptoms observed
could be caused by a traumatic event, but without qualifying it.
9.8
The Committee notes that the complainants were requested to pay an advance of 800
Swiss francs. It recalls its jurisprudence 37 and General Comment No. 4, according to which
the recourse should be accessible in practice without obstacles of any nature. 38 It also notes
that the complainants allegations were assessed as unfounded by the TAF as the first
complainant had presented different versions of the incidents at the various hearings. The
Committee further notes that the State party challenges the first complainant’s credibility on
all accounts. With regard to the material evidence provided by the complainants with the
application for re-examination of their asylum request, the Committee takes note of the State
party’s assessment that the police summons presented in support of the complainant’s claim
of persecution, showed signs of forgery and were not accepted as genuine documents. The
Committee observes that faced with the irregularities concerning the alleged summonses, the
first complainant could not make them plausible before the national authorities.
9.9
In the particular circumstances of the case and in view of the medical reports
produced, the Committee considers that the State party has complied with the above
mentioned requirement by enabling the complainant to undergo medical and psychological
36
See M.B. et al. v. Denmark (CAT/C/59/D/634/2014), para.9.8.
See Abdulkarim v. Switzerland (CAT/C/62/D/710/2015), para.6.2
38 General Comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22,
para. 35.
37
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