against Torture , established under article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 19 May 1998,
Having concluded its consideration of communication No. 94/1997, submitted
to the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Having taken into account all information made available to it by the author
of the communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1. The author of the communication is K. N., a national of Sri Lanka,
seeking asylum in Switzerland. He claims that his forced return to Sri Lanka
by Switzerland would constitute a violation of article 3 of the Convention.
He is represented by counsel.
Facts as Presented by the Author
2.1 The author states that he was born on 13 March 1972 and that he is a
Tamil and a Christian. He lived with his family in the northern province of
Jaffna. In 1990, during the war between the "Indian peacekeeping forces" and
the Tamil Tigers (Liberation Tigers of Tamil Eelam – LTTE), the author was
forced to work for the Tigers. He was detained for a few days by the Indian
army and then released. However, in 1994, the author's brother joined the
Tamil Tigers and when the Sri Lankan armed forces reconquered Jaffna in
October 1995, they were allegedly searching for the author and his brother.
The author states that he has no news from his brother since he joined the
2.2 On 13 September 1995, the author fled to Kilinochi, further south, a
town controlled by the Tigers. In autumn 1996, when the Sri Lanka army
approached the town, the author fled to Colombo since he had been informed
by his parents that the army had come to their house on three occasions to
look for him. On 5 September 1996, he flew to Rome.
2.3 The author arrived in Switzerland on 10 September 1996. On 30 October
1996, the Office fédéral des réfugiés (ODR) rejected his application for
recognition as a refugee. The Commission suisse de recours en matière
d'asile (CRA) rejected the author's appeal on 22 January 1997. The author
was ordered to leave Switzerland before 28 February 1997.
2.4 On 31 July 1997, the author through his attorney requested the CRA to
review its decision, arguing that the fact that the Sri Lanka army had
searched for him had been overlooked. On 8 August 1997, the CRA rejected the
application as out of time.
2.5 At the end of July, beginning of August 1997, the author received a
letter from his father, dated 10 July 1997, in which he warned him not to
come home because the security forces were looking for him. The author
presented the letter with an application to the ODR on 5 September 1997,
after having had it translated. On 10 September 1997, the ODR rejected the
author's application, considering the letter one of convenience. The author
appealed against this decision, but in a letter of 13 October 1997 he was
informed by a judge of the CRA that he considered the appeal as devoid of
any chance of success; consequently, no suspensive effect was given to the
appeal and the author was requested to pay SwF 900 if he wanted the ODR to
consider his case. The author, in a letter of 29 October 1997, explained to
the judge that he did not consider the appeal to be an effective remedy,
since it had no chance of success. He further considered the requirement to
pay SwF 900 excessive and constituting a deterrent, since he had no income
whatsoever. The author recalls that the Committee's rules of procedure state
that a remedy need not be exhausted where it is unlikely to bring effective
relief to the alleged victim.
3.1 It is argued that the rejection of the author's application as out of
time is in violation with article 3 of the Convention, which constitutes an
absolute prohibition on refoulement. He further argues that he only
discovered on 29 July 1997, that the officers had overlooked the fact, so
that his application should be considered in time, since it was submitted
within three months of the discovery.
3.2 The author claims that he runs a serious danger of being detained and
tortured in Sri Lanka by the security forces, should he be returned. It is
submitted that the Sri Lanka army is known for its poor human rights record.
State Party's Observations
4. On 18 November 1997, the Committee, acting through its Special Rapporteur
for New Communications, transmitted the communication to the State party for
comments and requested the State party not to expel the author while his
communication was under consideration by the Committee.
5.1 In its observations, dated 19 January 1998, the State party informs the
Committee that the necessary measures have been taken to suspend the
author's expulsion. While recognizing the importance of interim measures of
protection to guarantee a person's effective recourse to the Committee under
article 22 of the Convention, the State party notes that the possibility of
demanding interim measures is not foreseen in the Convention itself and that
article 108, paragraph 9, is just a rule of procedure. According to the
State party, the individual communication to the Committee is and should
remain an exceptional remedy, not the automatic follow up after exhaustion
of domestic remedies. The regular issuing of requests under rule 108,
paragraph 9, could interfere with the subsidiary nature of the
5.2 The State party is of the opinion that the Committee should only use the
procedure under rule 108, paragraph 9, when there is a prima facie important
and serious risk that someone would be subjected to torture if deported. The
State party expresses its concern about the fact that the Committee has
requested to suspend the expulsion in 9 out of the 16 cases concerning
Switzerland. It notes that the exception thus has become the rule. The State
party considers that this use of rule 108, paragraph 9, is unjustified in
the majority of cases, and shows a lack of understanding of the seriousness
with which the Swiss authorities examine the applicant's situation. In the
instant case, the State party fails to understand the reasons which made the
Committee issue a request for interim measures.
6. With regard to the admissibility of the present communication, the State
party states that it is not aware of the case having been submitted to
another instance of international investigation or settlement. The State
party does not contest the admissibility for failure to exhaust domestic
7.1 Concerning the merits of the communication, the State party recalls the
text of article 3 of the Convention, as well as the Committee's
jurisprudence in this respect. It notes that the author bases his complaint
mainly on his short detention by the Sri Lanka security forces on suspicion
of belonging to the Tamil Tigers and on reports that the Sri Lanka security
forces were looking for him, after his brother joined the LTTE. According to
the author, he would risk to be subjected to torture because he belongs to
the Tamil minority, and because of his age he would be recruited into the
LTTE. Further, he would be suspected of belonging to the LTTE because of his
7.2 The State party submits that the facts as presented by the author have
not been the object of a thorough examination by the authorities, as his
request for asylum was rejected following the existing case law, since he
mainly invoked the situation in his country as ground for asylum and no
personal grounds of persecution. The fact that the authorities have not
challenged the facts as presented by the author can thus not be taken to
indicate that they accepted them as established. Indeed, the ODR, in its
decision of 30 October 1996, expressed doubt with regard to the likelihood
of some of the events recounted by the author.
7.3 According to the State party, the facts as presented by the author in
any event fail to show the existence of grounds for believing that he would
be personally in danger of being subjected to torture upon his return to Sri
Lanka. In this connection, the State party notes that the author has never
given precise information with regard to his arrest or the circumstances of
his detention, despite an invitation to do so by the ODR. In the State
party's opinion, the author's description of these events are vague and full
of gaps, raising doubts about their reality.
7.4 Furthermore, the author has never claimed to have been subjected to
torture . In this context, the State party refers to the Committee's
decision in communication No. 38/1995 [FNa] where it took into consideration
the fact that the author had never claimed that he had been tortured in
reaching its decision that his case showed no violation of article 3.
Moreover, the State party points out that the alleged arrest and detention
in the instant case date back more than seven years, and that it would
therefore be difficult to admit a link between this event and the author's
present fear of persecution. During the hearing before the immigration
authorities, the author declared that since his release he had lived in
Kilinochi for 11 months without any problem, as well as in Colombo.
[FNa] Babikir v. Switzerland, Views adopted on 9 May 1997.
7.5 With regard to the author's claim that the security forces are looking
for him because his brother is a member of the LTTE, the State party
considers that his statements in this regard are not credible. During the
hearing, he was asked whether he had encountered problems because of his
brother, to which he replied that he was taken in for questioning in 1994,
which was disturbing, but did not cause any problems. In his communication
to the Committee, the State party notes that the author states that the Sri
Lanka army is looking for him, because of his brother, a claim contradictory
to what he told the Swiss immigration authorities. With respect to the
letter from the author's father, of 10 July 1997, the State party contends
that it does not constitute sufficient evidence, since it gives no support
to the author's claim of arrest and detention, and coming from a close
relative, has little evidentiary value. In the State party's opinion, if the
army were in reality looking for the author, he could not have left
Kilinochi to go to Vavuniya, since the area is closely controlled by the
army; nor could the author have easily obtained an army pass to go to
Colombo. The State party concludes that the author has not substantiated his
claim that the army is looking for him and that he consequently risks to be
subjected to torture.
7.6 The State party notes that the author now claims that he risks
persecution by the army, whereas before the immigration authorities he
claimed that "different movements" had stopped and interrogated him. In this
context, the State party refers to the hearing before the immigration
authorities, where the author replied to the question what he would risk
upon return to his country, that he risked being taken by the movement for
which he would have to work. The State party concludes that the author's
asylum request was mainly based on the threat by the LTTE, whereas before
the Committee he claims risk of persecution by the army. The State party
recognizes the possibility that a person is threatened by the State and an
opposition movement at the same time, but does not believe that this is so
in the author's case. Rather, the State party considers it likely that the
author has changed his story in view of the text of article 3 of the
Convention, that the risk of torture must be originating in State authority.
Again referring to the minutes of the hearing before the immigration
authorities, the State party notes that the author indicated as reasons for
his departure the problems with the movement and bombardments.
7.7 The State party concludes that the author has failed to show that he
would risk to be subjected to torture upon return to Sri Lanka. The State
party adds that the situation of human rights in a country cannot bring a
person within the protection of article 3 in the absence of a personal risk.
According to the State party, the human rights situation in Sri Lanka has
improved considerably since October 1994, after the installation of the
Human Rights Task Force. It also points out that the author could reside in
a part of Sri Lanka that does not suffer from civil war.
The Author's Comments
8.1 In his comments, the author maintains that the Sri Lanka army is looking
for him since his brother joined the LTTE, and that he told the Swiss
authorities about this. The fact that he also had problems with the Tamil
movements, does not contradict his problems with the army. In this
connection, counsel for the author notes that the ODR and the CRA never
pointed to any contradictions in the author's story. Counsel explains that
the author's fear for the LTTE has not been mentioned in his communication
to the Committee, because the LTTE controls only the northern part of Sri
Lanka, and the author could hide from them in Colombo if he wanted. This
does not imply that he has changed his story for the benefit of the
application of article 3 of the Convention.
8.2 Counsel submits that the author is threatened by serious persecution
from the Sri Lanka security services, since the war is still continuing and
since the LTTE have increased their activities in Colombo.
8.3 With regard to the State party's concern that the Committee is being
used as a regular supervisory body, counsel submits that the State party's
concern is groundless, in view of the fact that Swiss immigration
authorities handle about 30,000 cases a year. Counsel notes that the
author's case was examined by one ODR official and the appeal was heard by a
single judge. In counsel's opinion, the judges are not really independent
since they are appointed by the Government and not by Parliament.
Issues And Proceedings Before the Committee
9. Before considering any claims contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 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. The Committee finds that no
further obstacles to the admissibility of the communication exist and
proceeds with the consideration of the merits of the communication.
10.1 The Committee has considered the communication in the light of all the
information made available to it by the parties, in accordance with article
22, paragraph 4, of the Convention.
10.2 The Committee must decide, pursuant to paragraph 1 of article 3,
whether there are substantial grounds for believing that the author would be
in danger of being subject to torture upon return to Sri Lanka. In reaching
this decision, the Committee must take into account all relevant
considerations, pursuant to article 3, paragraph 2, including the existence
of a consistent pattern of gross, flagrant or mass violations of human
rights. The aim of the determination, however, is to establish whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which he or she would return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his return to that country; additional grounds
must be adduced to show that the individual concerned would be personally at
risk. Similarly, the absence of a consistent pattern of gross violations of
human rights does not mean that a person cannot be considered to be in
danger of being subjected to torture in his or her specific circumstances.
10.3 The author has claimed that he was arrested once in 1990 by the Indian
armed forces, that his brother became a member of the Tamil Tigers in 1994
and that for this reason the army is looking for him and has searched his
family's house on several occasions. The Committee notes that the only
substantiation in support of the author's claim is a letter from the
author's father, in which it is stated that the army came to the house to
look for him and his brother. The Committee notes, however, that the letter
does not give any details about either the author's or his family's
situation. The author has not presented any other evidence in support of his
claim. He does not claim that he has been tortured in the past.
10.4 The Committee has carefully examined the material before it and finds
that it appears that the author's main reason to leave his country was that
he felt caught between the two parties in the internal conflict. There is no
indication that the author himself is personally targeted by the Sri Lankan
authorities for repression.
10.5 The Committee is aware of the serious situation of human rights in Sri
Lanka and notes with concern the reports of torture in this country. The
Committee recalls however that, for the purpose of article 3 of the
Convention, a foreseeable, real and personal risk must exist of being
tortured in the country to which a person is returned. On the basis of the
considerations above, the Committee is of the opinion that such risk has not
11. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, is of the view that the facts as found by the
Committee do not reveal a breach of article 3 of the Convention.
[Done in English, French, Russian and Spanish, the English text being the