CAT/C/71/D/790/2016
summit for human rights and democracy, in which he had participated as a member of that
church. The Court considered that the summit was a public and important event, offering a
platform for human rights activists and opponents of the Chinese State, which sends
observers to it. Even if the he did not have the role of a speaker, the Court considered that the
fact that the other appellant might have been identified as a member of the church meant that
he likely faced a risk of being persecuted if he was returned to China. The complainant argues
that it has been proven that she participated in the same conference and that she was presented
in the YouTube video as member of the church. She submits that the State party’s lack of
consideration of that point contravenes the jurisprudence of the Court.
State party’s further observations
8.
On 14 January 2020, the State party submitted a reply indicating that the complainant’s
comments did not contain new elements and that it maintained the conclusions formulated in
its prior observations.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any claim submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee notes that
the State party contests the admissibility of the complaint, with reference to article 22 (5) (a)
of the Convention, on the grounds that the same question has been examined by the European
Court of Human Rights, by way of inadmissibility decision of 9 November 2016. It also notes
that the complainant does not contradict the assertion that her application before the Court
concerned the same question, but that she submits that the Court did not examine it, given
that it declared it inadmissible because she had invoked the wrong convention. The
Committee notes that, although the decision refers to articles 34 and 35 of the Convention
for the Protection of Human Rights and Fundamental Freedoms, it does not provide specific
reasons to justify the conclusion of inadmissibility. The decision therefore does not permit
the Committee to evaluate the extent to which the Court examined the question, in particular
whether it conducted an in-depth analysis of the merits of the case. The Committee considers
that article 22 (5) (b) of the Convention does not preclude it from examining the present case.
9.2
The Committee notes that the State party submits that the complaint is inadmissible
to the extent that the complainant has not invoked her political activities in Switzerland before
the domestic authorities. It also notes that the complainant contests that that is a new element,
arguing that her activities in Switzerland prove her public political engagement for religious
freedom in China and are in line with her religious beliefs and activities. The Committee
notes that the complainant does not contest that she has not raised her political engagement
before the domestic asylum authorities. The Committee considers that she does not refute
that such a remedy would have been effective; her reference to the judgment of the Federal
Administrative Court of 12 November 2019 shows that such activities may be invoked in the
domestic procedure and provides no grounds to consider that the procedure is unlikely to
bring effective relief. Accordingly, and in the absence of any other information or explanation
of pertinence on file, the Committee considers that the complainant has failed to exhaust all
available domestic remedies in respect of her political activities in Switzerland and declares
that part of the complaint inadmissible under article 22 (5) (b) of the Convention.
9.3
The Committee notes that the State party observes that the complainant did not invoke
her membership of the Church of the Almighty God in the domestic procedure. It also notes
that the complainant disputes that observation and refers to her appeal before the Federal
Administrative Court, in which she mentioned her membership. The Committee notes,
however, that the supposed proof of her membership has not been submitted in the domestic
procedure.
9.4
The Committee recalls its jurisprudence according to which the State party must have
the opportunity to examine new evidence covered by article 3 before it is considered by the
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