A.Sh., et al. v. Switzerland

A.Sh., his wife Z.H. and their children, ethnic Chechens of the Muslim faith with Russian citizenship were residing in Switzerland and awaiting deportation to the Russian Federation. A.Sh.’s brother-in-law was a leader of a Chechen insurgent group who went into hiding. A.Sh. helped his sister and was arrested and beaten for collaborating with insurgents. He left the Russian Federation with his eldest son for Switzerland. When the police searched for him, they interrogated Z.H. about his whereabouts and then closed his shop and would not allow her to re-open it, stating it was her husband’s. The police came to her house, searched it, and took her passport, after which the commanding officer raped Z.H. She and her traumatize younger son went to live with her parents, and then left the Russian Federation illegally by car for Switzerland, where the complainants’ request for asylum was denied. The Committee considered complainants’ claim that, if they were returned to the Russian Federation, they would be exposed to torture, and Switzerland would be in violation of article 3 of the Convention. The Swiss authorities questioned complainants’ credibility and argued that the possibility they could settle in another region of the Russian Federation, other than Chechnya, meant they were not likely to be exposed to serious risk of treatment contrary to the Convention in case of return. The Committee addressed the claim that because Z.H.’s rape was not raised at the time of the first asylum procedure, the complainants lacked credibility, stating that Z.H. and her husband had been subjected to torture and suffered post-traumatic stress disorder according to the medical reports issued by Swiss psychiatrists and psychologists. Accordingly, since complete accuracy is seldom to be expected from victims of torture, the delay in reporting the sexual abuse did not undermine Z.H.’s credibility. In this connection, the Committee recalled prior its prior holdings that rape constitutes “infliction of severe pain and suffering perpetrated for a number of impermissible purposes, including interrogation, intimidation, punishment, retaliation, humiliation and discrimination based on gender”, and that in other cases it has found that “sexual abuse by the police … constitutes torture” even when it is perpetrated outside of formal detention facilities.” The Committee also rejected the Swiss authorities’ reliance on “internal flight,” citing the Russian requirement that Russian nationals must register within 90 days of arriving in a new place of residence and that this information will be accessible to Chechen authorities. By rejecting the asylum application based on the assumption of the availability of an internal flight alternative and without giving sufficient weight to whether they could be at risk of persecution, the Committee determined that Switzerland failed its obligations under article 3 of the Convention. It concluded that Switzerland could not forcibly return complainants to the Russian Federation or any country where there was a risk they could be returned to the Russian Federation. Switzerland was given 90 days to respond with the steps it planned to take.