CAT/C/65/D/811/2017
does not see how any preparation before the hearing should be counted against him. On the
contrary, the fact that he was able to cite specific dates should constitute evidence in
support of his credibility.
5.16 Concerning the State party’s argument that the Committee should not substitute its
own view of the facts for that of the State Secretariat for Migration or undertake any
examination of plausibility, the complainant notes that his case cannot be compared with
the case of M.O. v. Switzerland, since, in the present case, there are serious procedural
irregularities that have affected his case, while the available evidence does not support the
finding that his statements during the asylum procedure are not convincing. As the Federal
Administrative Court emphasized, the analysis of his case was only “summary”. In
accordance with the case law of the European Court of Human Rights in the M.O. v.
Switzerland case, it is precisely the fact that the credibility assessment made by the Swiss
authorities was carried out in an appropriate manner from a formal point of view that it was
decisive for the Court. It should also be noted that, in that case, the complainant was heard
three times by the Secretariat. Moreover, unlike the present case, his grounds for asylum
were thoroughly examined by the Federal Administrative Court.
5.17 With regard to the State party’s argument that the complainant was informed of the
possibilities of assistance available to him that he could have used to good advantage at his
own expense, the complainant recalls that he has no right to work and that he is therefore
totally destitute. Consequently, he cannot be required to hire a lawyer.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any complaint contained in a communication, the Committee
must decide whether the complaint is admissible under article 22 of the Convention. The
Committee has ascertained, as it is required to do under article 22 (5) (a) of the Convention,
that the same matter has not been and is not being examined under another procedure of
international investigation or settlement.
6.2
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention,
it shall not consider any complaint from an individual unless it has ascertained that the
individual has exhausted all available domestic remedies. This rule does not apply where it
has been established that the application of the remedies has been unreasonably prolonged,
or that it is unlikely, after a fair trial, to bring effective relief to the alleged victim. 60
6.3
The Committee notes that the State party challenges the admissibility of the
complaint on the grounds of non-exhaustion of domestic remedies. The State party asserts
that the complainant did not show that the advance payment of fees requested prevented
him from exhausting this remedy or that the remedy would have been pointless. The
Committee also notes that the complainant considers that he is living in poverty since he is
not permitted to work; that this situation prevented him from covering the legal fees; and
that the requirement for an advance payment of 600 francs has denied him access to a
thorough and diligent examination of his file by an independent judicial body.
6.4
The Committee considers that, given the complainant’s personal circumstances, it
was unfair to oblige him to pay the sum of 600 Swiss francs in order for his last application
to be admissible. This view is based on the fact that the complainant is destitute, that he is
not permitted to work in the State party’s territory and that the assistance he receives
amounts to only 415 Swiss francs per month. It therefore seems unreasonable to deny the
complainant the possibility of applying for a review of his case on financial grounds
considering his difficult financial circumstances. 61 The Committee recalls that all the
applicant’s arguments and evidence against the State Secretariat for Migration decision
60
61
GE.19-01118
See the Committee’s general comment No. 4 (2017) on the implementation of article 3 of the
Convention in the context of article 22, paras. 13, 18 (e) and 34, which replaced general comment
No. 1 as of 6 December 2017.
C.M. v. Switzerland (CAT/C/44/D/355/2008), para. 9.2 and Abdulkarim v. Switzerland
(CAT/C/62/D/710/2015), para. 6.2.
13