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The Committee
against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 12 November 1999,
Having concluded its consideration of communication No. 96/1997, 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.
1.1 The author of the communication is A. D., a Sri Lankan national of
Sinhalese origin at present residing in the Netherlands where he has asked
for asylum. His asylum request has been rejected and he is at risk of
deportation. He claims that his return to Sri Lanka would violate the
Netherlands' obligations under article 3 of the Convention. He is
represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 19 November
1997.
The Facts as Presented by the Author
2.1 The author states that since 1974 he has worked as a freelance
photographer in Sri Lanka and that in 1990 he began to take pictures of
people murdered or injured. The first pictures he took were of six people
who had been burned and were lying on the side of a road between Minuwangoda
and Jaela, tied to tyres. The author suspected that the victims were
supporters of the Sinhalese nationalist People's Liberation Front (JVP). At
first he took these pictures for himself out of indignation, but later he
decided to make them public. The pictures were published in two newspapers (Lakdiwa
and Rajatiya), in weekly magazines (Ira, Hannde and Janahita) and in a
monthly review (Kolama). The author's name was not published at that time.
In 1991, some of the author's signed pictures were exhibited at the National
Photographic Art Society. Apparently, unknown persons made inquiries about
the identity of the photographer.
2.2 On or around 8 October 1992, the author was visited in his studio by
eight men who were dressed in black and wearing masks. They asked him
whether he worked for newspapers and, although the author denied this, they
destroyed his equipment. They also forced him to shut his studio and go
home.
2.3 A few days later, two unknown persons abducted the author from his home
in Colombo, blindfolded him, and drove him to a two-storey building where he
was held with about 10 other persons in a room. The author believes that the
other persons were members or supporters of the JVP. The author states that
he was subjected to torture, including beatings, needles placed under his
fingernails, being dropped from a height of about three meters, an iron rod
inserted into his rectum, a bag of chili peppers tied over his head, hanging
upside down by the legs for three hours and fake executions by hanging.
2.4 After 15 days he was released. He was driven blindfolded to the
Rajagiriya graveyard and left there. He then walked to his home in Madjadah,
Colombo. His neighbour took him to Kandy, near Barigama, after which he did
not return to Colombo. He worked in Kandy, mostly in his studio, and
appeared in public as little as possible.
2.5 The author arrived in the Netherlands in May 1993. On 23 September 1993
he filed a request for asylum or to be granted a residence permit on
humanitarian grounds. In addition to the events recounted above, the author
also brought to the attention of the asylum authorities that he had attended
a meeting organized by the "Fédération internationale de l'art
photographique" in the Netherlands where he made a speech criticizing the
Sri Lankan regime.
2.6 On 19 October 1993, his request was denied by the State Secretary of
Justice on the grounds that the author had not undertaken any political
activities and was not considered a refugee according to the 1951 Convention
relating to the Status of Refugees. The State Secretary further emphasized
that the author had stayed in the Netherlands for four months before
requesting asylum and that he had travelled on a passport in his own name.
Finally, the State Secretary noted that the opinions expressed in the
Netherlands by the author about the Sri Lankan Government did not constitute
grounds for granting him refugee status. On 22 October 1993, the author
applied for a review of the decision, but the State Secretary denied
suspensive effect to his application.
2.7 The author then initiated summary proceedings before the District Court
in The Hague in order to obtain from its President a decision that he should
not be deported pending the completion of the review procedure. This
application was rejected on 14 December 1993 and on 29 July 1994, the State
Secretary of Justice rejected the author's application for review.
2.8 On 10 August 1994, the author appealed the decision of the State
Secretary to the District Court in The Hague, which rejected the appeal on
14 July 1995. Finally, on 5 December 1995, the Dutch section of Amnesty
International intervened on behalf of the author, but the State Secretary
replied on 16 May 1997 that she would not revoke her decision, inter alia
due to the change which had taken place in the political situation in Sri
Lanka since 1992.
2.9 The author states that he still suffers from health problems as a
consequence of the torture to which he was subjected. He refers to a medical
report, dated 11 December 1995, according to which he had problems with his
shoulder, back and left leg, and that these conditions were not incompatible
with the torture as described. In a further medical report of 23 October
1997 by Amnesty International's medical research team, it is stated that the
physical examination showed several physical signs that fit the types of
torture described by the author, such as insertion of needles under
fingernails. The report further stated that although the author was not
suffering from post-traumatic stress syndrome at the time, the anamnesis
suggested that he had probably suffered from it in the past and was able to
develop effective strategies to cope. According to the report, many
indicators of post-traumatic stress were apparent, such as avoidance
behaviour, partial amnesia and sleep disorders.
2.10 According to the author, the human rights situation in Sri Lanka in
1992 was alarming. Photographers and journalists were particularly targeted.
He refers to press reports according to which in the early 1990s death
squads known as "black cats" were operating with the support of the
Government. Many human rights activists disappeared. After the 1994
elections the United National Party (UNP) lost power and was replaced in
Government by the People's Alliance (PA). However, journalists continued to
be intimidated and disappearances and executions continued. Prosecution and
punishment for past human rights violations are said to be inadequate and
the Government fails to control the police and the military.
The Complaint
3.1 The author argues that he would be in danger of being tortured if he
were to return to Sri Lanka. He states that there is a consistent pattern of
gross, flagrant and mass human rights violations in that country and fears
that those responsible for the killings photographed by him may seek
revenge. He says that it cannot be required of someone who was a victim of
serious human rights violations in the past that he return to the country
where those violations occurred.
State Party's Observations on Admissibility and Merits
4.1 In a submission of 19 January 1998, the State party informed the
Committee that in its view, the author had exhausted available domestic
remedies and that it accepted the admissibility of the communication. In
submissions of 19 May 1998, 28 May 1998 and 19 June 1998, the State party
presented its observations regarding the merits of the communication.
4.2 The State party points out that in the course of the domestic
proceedings, a careful assessment had been made of the general human rights
situation in Sri Lanka and the feasibility of return to Sri Lanka. According
to the State party's available information, the so-called "Black Cats death
squads" were active in the years 1988-1990, when the United National Party
was in power. After the People's Alliance came into power in 1994, the human
rights situation in Sri Lanka improved and all previous restrictions on the
freedom of the press were withdrawn. In September 1995, when the armed
conflict between the Government and the LTTE erupted again in the north,
censorship was introduced on reporting about military operations in that
area. Although the state of emergency and the censorship of reports of
military operations in the north places constraints on journalists, the
State party states that it has no information about journalists being
harassed in connection with war reporting.
4.3 In view of the author's statements and documentary evidence, the State
party does not doubt that the author is a photographer and that he took
photographs from 1990 onwards, whether or not instructed to do so by various
political parties, of victims of human rights violations, and that these
photographs were published in various newspapers. The State party also
considers it plausible that the author was in fact abducted because of these
activities.
4.4 The State party wishes to draw the attention of the Committee to the
discrepancies between the arguments and statements on which the
communication is based and the statements made by the author in the initial
domestic proceedings. In the domestic proceedings the author consistently
stated that he had been abducted in March 1991 and held captive for 15 days.
It was not until after the domestic proceedings had been concluded that the
author stated, through Amnesty International, that the abduction and alleged
torture had taken place not in March 1991 but on 8 October 1992. The author
has not explained this inconsistency, although it is important for an
assessment of his account. Had he been abducted in 1991 it would be curious
that it was not until 8 October 1992 that men approached him and urged him
to close his studio. In any event, the author has not supplied any
information about the period between March 1991 and 8 October 1992. His
explanation for this, namely that he had been unable to communicate
adequately due to the absence of a Sinhalese interpreter, is not credible.
The author's national case file makes it clear that his command of English
is sufficient for him to have been able to supplement his story accordingly.
4.5 Furthermore, when the author lost his appeal he also changed the
statement he had made during the domestic proceedings that he did not decide
to leave Sri Lanka until May 1993. He apparently stated to Amnesty
International that he had already decided to leave his country after his
alleged abduction on 8 October 1992. He has not supplied an adequate
explanation for this inconsistency either. In the State party's opinion, the
author probably changed his story to make it more logically consistent.
4.6 In addition, the State party points out that from the moment of his
release in October 1992 until the date of departure in May 1993, the author
was able to avoid any further problems by moving to a different part of the
country. The State party submits that it does not have enough information to
ascertain whether the author was obliged to do this work in secret, as he
maintains. Finally, the State party argues that the author's photographic
activity related to exposing of the misdeeds of the previous United National
Party regime, which would not put him at risk for persecution from the
present Government.
4.7 As to the assessment of the medical evidence supplied by the author, the
State party notes that the medical certificate of 11 December 1995 stated
that the violence described by the author might have caused the pain in his
shoulders and back from which he was suffering. The State party also refers
to the medical examination conducted by the medical research team of Amnesty
International after the domestic proceedings had been formally concluded,
noting that while the physical examination revealed a variety of
abnormalities consistent with the type of torture the author had described,
the author did not satisfy the criteria for a diagnosis of post-traumatic
stress syndrome, and although he might have suffered from this syndrome in
the past he had managed to develop effective ways of coping with it.
4.8 Lastly, the State party argues that several of the individual factors
that the Committee has deemed to be of decisive importance in other
communications it has dealt with play little or no role in the present one,
such as the ethnic origin or political activities of the individual
concerned. In the present case the author did not have any problems relating
to his Sinhalese origin, nor did he sympathize with or work actively for any
political party.
4.9 The State party concludes that the author has not substantiated elements
which would allow it to be concluded that, on the basis of his ethnic
background, alleged political affiliation and history of detention, the
author would be in danger of being subjected to torture upon his return to
Sri Lanka. Accordingly, it considers the communication ill-founded.
Counsel's Comments
5.1 In his reply to the State party's submission, counsel notes that the
State party does not contest the most important elements of the author's
account of his activities as a photographer, i.e. abduction and escape from
Sri Lanka. The inconsistencies to which the State party refers do not raise
doubts as to the general veracity of his claim and are to be explained by
the absence of a Sinhalese interpreter during the initial asylum proceedings
and the fact that the author had previously been subjected to torture and
serious ill-treatment..
5.2 Counsel further notes the State party's argument that the author's
activities in Sri Lanka were not based on political conviction and that he
was never a member of a political party. According to counsel the position
of the State party displays an incorrect and narrow definition of "political
belief". Even though the author was not member of a political party,
political belief was attributed to him by the authorities owing to his
having published photographs of victims of human rights violations.
According to both Dutch case law and international refugee law, attributed
political belief has been considered as one criterion for determining
refugee status.
5.3 Counsel refutes the argument that by moving to another part of Sri Lanka
the author was able to avoid any further difficulties from October 1992
until his departure. Counsel maintains that the author went into hiding and
worked in secret and points out that the State party itself admits not
having enough data to ascertain whether the author was actually obliged to
work in secret. The question of an internal flight alternative was not
previously raised during the domestic proceedings and should therefore not
be an issue before the Committee. In any case, an internal flight
alternative would not be feasible, in view of the fact that the author was
being persecuted by the authorities.
5.4 With respect to the medical evidence, counsel submits that the State
party should have conducted its own medical examination in view of the
author's claim that he had been subjected to torture. A medical examination,
conducted by the Bureau of Medical Advice of the Ministry of Justice, could
have demonstrated that the torture to which the author was subjected in Sri
Lanka had resulted in a post-traumatic stress disorder.
5.5 With reference to the general political situation in Sri Lanka, counsel
draws the attention of the Committee to the fact that in view of the
uncertain and dangerous situation prevailing in the country, Dutch
authorities have for a period of time refrained from deporting Sri Lankan
asylum-seekers. In the present situation there is no guarantee that the
author would not risk persecution from the Government now in power in Sri
Lanka, nor that he would be effectively protected by the Government should
he be persecuted or tortured by these previously in power.
Additional Observations by the State Party and Counsel
6.1 On 14 December 1998 the State party provided the Committee with
additional observations in response to counsel's comments. It pointed out
that counsel's comments regarding the non-deportation of Sri Lankan
asylum-seekers was incorrect. In spring 1998 the State Secretary for Justice
considered it unnecessary to change the policy on expelling asylum-seekers
in connection with the situation in Sri Lanka. On 23 June 1998, the State
Secretary for Justice informed the Lower House of Parliament that rejected
Tamil asylum-seekers would not be expelled from the Netherlands, pending a
court judgement on an appeal brought by a Tamil and in the light of the
injunction granted in that case. The decision not to expel this category of
person during a certain period of time was thus a procedural matter. In a
judgement of 9 October 1998, the Hague District Court considered that the
State Secretary for Justice could in all reasonableness have concluded that
expelling rejected Tamil asylum-seekers to Sri Lanka could not be construed
as a particularly harsh measure. The present policy of returning Sri Lankan
asylum-seekers is therefore still in place.
6.2 The State party further informed the Committee that on 17 November 1998,
the State Secretary for Justice informed counsel that the author might be
eligible for a residence permit for medical treatment. According to the
State party's information, the author had applied for such a permit, which
was likely to be granted within a foreseeable period. The State party
submitted that once the author had received a residence permit for medical
treatment, he would no longer be at risk of expulsion and the grounds for
his application to the Committee would cease to exist.
6.3 On 22 April 1999 counsel informed the Committee that the author had not
yet received any residence permit for medical treatment. Furthermore, such a
permit would be temporary and expire when the medical treatment was no
longer necessary in the view of the medical adviser to the Ministry of
Justice. Counsel submits that such a permit only postpones the expulsion
risk, and that this is inadequate in order to fulfil the requirements of
article 3 of the Convention.
6.4 By submission of 28 October 1999, the State party informed the Committee
that on 7 June 1999 the State Secretary of Justice granted the author a
residence permit for medical treatment, valid from 9 December 1998 until 30
September 1999.[FNa] Furthermore, the author had requested an extension of
this permit. There was no risk of expulsion while his request was under
consideration.
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[FNa] Counsel confirmed that information.
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Issues and Proceedings Before the Committee
7.1 Before considering any claims contained in a communication, the
Committee against Torture must decide whether or not the communication 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 further notes the State party's view that the author has exhausted
domestic remedies and that it accepts the admissibility of the
communication. The Committee finds that no further obstacles to the
admissibility of the communication exist. Since both the State party and the
author's counsel have provided observations on the merits of the
communication, the Committee proceeds with the consideration of such merits.
7.2 The Committee must decide, pursuant to article 3, paragraph 1, of the
Convention, whether there are substantial grounds for believing that the
author would be in danger of being subjected 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, of the
Convention, 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 exist 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.
7.3 The Committee notes the State party's information that the author at
present does not risk expulsion, pending the consideration of the author's
request for extension of his residence permit for medical treatment. Noting
that the order for the author's expulsion is still in force, the Committee
considers that the possibility that the State party will grant the author an
extended temporary permit for medical treatment is not sufficient to fulfil
the State party's obligations under article 3 of the Convention.
7.4 The Committee considers that the author's activities in Sri Lanka and
his history of detention and torture are relevant when determining whether
he would be in danger of being subjected to torture upon his return. The
Committee notes in that respect that although the State party has pointed to
inconsistencies in the author's account of events, it has not contested the
general veracity of his claim. The Committee further notes the medical
evidence indicating that the author, although not at present fulfilling the
criteria for a diagnosis of a post-traumatic stress disorder, may have
suffered from this syndrome in the past. However, the Committee also notes
that the harassment and torture to which the author was allegedly subjected
was directly linked to his exposure of human rights violations taking place
while the previous Government was in power in Sri Lanka. The Committee is
aware of the human rights situation in Sri Lanka but considers that, given
the shift in political authority and the present circumstances, the author
has not substantiated his claim that he will personally be at risk of being
subjected to torture if returned to Sri Lanka at present.
8. 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 decision of the State party
to return the author to Sri Lanka would not constitute a breach of article 3
of the Convention.
[Done in English, French, Russian and Spanish, the English text being the
original version.]
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