CERD/C/112/D/74/2021
fact that complete accuracy can seldom be expected from the victims. 32 The petitioners add
that the Committee against Torture has also recognized that some inconsistencies may exist
in the presentation of the facts, provided that the person has demonstrated the general veracity
of his or her claims.33 They also point out that the contradictions in G.I.’s statements are due
to the post-traumatic stress disorder that resulted from the sexual violence to which she was
subjected, which causes memory loss.34 The petitioners argue that the presence or absence of
G.I.’s children at the time of her rape and the number of times she attempted suicide have no
bearing on the veracity of her allegations of rape. They point out that the medical report of
26 July 2017 explains in detail why these allegations are true from a psychotherapeutic point
of view. The petitioners also point out that the State party has not contested the fact that G.I.
was sexually assaulted.
5.12 Lastly, the petitioners indicate that G.I. is not seeking to avoid deportation to North
Macedonia in order to benefit from better care in Switzerland. They argue that the main issue
is whether she would be able to obtain in North Macedonia the kind of medical care
absolutely necessary to treat her mental disorder to prevent serious risks to her health.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claim contained in a communication, the Committee must
decide, pursuant to article 14 (7) (a) of the Convention, whether domestic remedies have been
exhausted.
6.2
The Committee notes that the petitioners have alleged that a violation of article 5 (b)
and (e) (iv) read in conjunction with article 2 (1) (a) of the Convention would occur should
the State party decide to return them to North Macedonia, where U.I. risks being subjected
to torture and ill-treatment and G.I. would be deprived of post-rape medical care – risks
connected to their membership of the Roma ethnic group. The Committee notes that the
petitioners’ asylum application was considered by the Swiss migration authorities and that
the State Secretariat for Migration rejected it in a decision dated 29 May 2017. It also notes
that, in a decision dated 30 July 2020, the Federal Administrative Court rejected the appeal
lodged by the petitioners against the decision of the State Secretariat. The Committee
observes that the petitioners have submitted two new medical reports attesting to the
deterioration of G.I.’s health: one issued by the Biel Medical Centre dated 6 November 2020,
the other written by two doctors from the University Hospital for Psychiatry and
Psychotherapy in Bern dated 9 December 2020.
6.3
The Committee notes, however, the State party’s argument that the present
communication is inadmissible as the petitioners have not complied with the requirement of
the exhaustion of domestic remedies under article 14 (7) (a), of the Convention. It notes that
the State party indicates that the reports of 6 November and 9 December 2020, which were
issued after the Federal Administrative Court’s last decision on the petitioners’ asylum
application, may be submitted in the context of a re-examination procedure under article 111b
of the Asylum Act, if they are of such a nature as to influence the outcome of the dispute.
The Committee further notes that, according to the State party, an application for
re-examination on the basis of the new documents may be made at any time in accordance
with established jurisprudence, notwithstanding the requirement under article 111b of the
Asylum Act that the application be filed within 30 days of the discovery of the ground for
re-examination.
6.4
The Committee notes that the petitioners do not dispute the fact that the medical
reports of 6 November and 9 December 2020 were submitted after the final decision of the
Federal Administrative Court. It also notes that the petitioner indicate that G.I. based her
claim of racial discrimination on documents predating said medical reports and that it was
only to supplement the reports already submitted that G.I. submitted these new reports. The
32
33
34
10
Committee against Torture, general comment No. 4 (2017), para. 42.
Ibid., para. 49 (i).
The medical report of 9 December 2020 indicates that G.I. had memory problems that led her to give
partially contradictory information.
GE.24-07887