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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 13 November 2001,
Having concluded its consideration of complaint No. 156/2000, submitted to
the Committee against Torture under article 22 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Adopts the following:
Views Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is a Sri Lankan national of Tamil origin, born on 13
April 1979. He is currently in Switzerland, where he applied for asylum. His
application was turned down and he maintains that his expulsion to Sri Lanka
would constitute a violation by Switzerland of article 3 of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. He asked the Committee to deal with his case as a matter of
urgency, as he was facing imminent expulsion when he submitted his
complaint. He was represented by counsel until 9 April 2001.
1.2 On 21 February 2000, in accordance with article 22, paragraph 3, of the
Convention, the Committee transmitted the complaint to the State party. At
the same time, the Committee, acting in accordance with rule 108, paragraph
9, of its rules of procedure, requested the State party not to expel the
complainant to Sri Lanka while his complaint was under consideration. On 23
May 2000, the State party informed the Committee that steps had been taken
to ensure that the complainant was not sent back to Sri Lanka while his
complaint was under consideration by the Committee.
The Facts as Presented by the Author
2.1 The complainant states that, like most Sri Lankans of Tamil origin, he
was forced to work from a very early age for the Liberation Tigers of Tamil
Eelam (LTTE) movement, particularly in building bunkers and putting up
propaganda posters. He says that he had to flee from Kilinochchi to Colombo
because he refused to be more active in the movement.
2.2 The complainant maintains that he was arrested several times by the
government authorities in Colombo and sometimes held for over a fortnight
and that he was tortured on the grounds of being a member of the Tamil
Tigers. He says that he was taken before the court on several occasions, the
first time being on 15 March 1997, before being released shortly afterwards.
He adds that he was arrested again on 3 January 1999 by the Colombo police
and detained for a month before being brought before the court again on 10
February 1999. According to the complainant, the judge released him only on
condition that he report every Saturday to the office of the Criminal
Investigation Department (CID) in order to sign a register.
2.3 The complainant states that he fled Sri Lanka on 28 March 1999 with the
help of a trafficker. He adds that, as a result of his flight, a warrant was
issued for his arrest, with reference to which a document issued by the
Colombo police was produced dated 23 August 1999. He arrived in Switzerland
on 29 March 1999.
2.4 The complainant's application for asylum in Switzerland, filed on 30
March 1999, was turned down on 18 August 1999. On 10 December 1999, in
response to an appeal lodged by the complainant on 21 September 1999, the
Swiss Appeal Commission on Asylum Matters upheld the original decision to
refuse asylum. The complainant was given until 15 January 2000 to leave the
country, but, on 10 January 2000, requested an extension of the deadline on
health grounds. On 20 January 2000, the Federal Office for Refugees found
that those grounds did not justify postponement, but decided to extend the
deadline until 15 February 2000 to allow the author time to prepare his
departure.
The Complaint
3.1 The complainant states that his return to Sri Lanka would heighten the
suspicions of the local police that he was a member of the Tamil Tigers, so
that he would be in danger of being summarily arrested and tortured on
arrival in Colombo. According to the complainant, there is no doubt that any
Sri Lankan national of Tamil origin who has fled his country after being
persecuted by government forces is more likely to be tortured if he returns
to the country.
3.2 The complainant refers to a report by Amnesty International dated 1 June
1999, according to which acts of torture carried out by the security forces
are reported on an almost daily basis in the context of the armed conflict
with the LTTE. According to the report, the problem also extends to routine
policing, with police officers regularly torturing criminal suspects. Thus,
again according to the same source, despite existing legal safeguards,
torture continues to be practised with relative impunity.
3.3 The complainant concludes that the argument that the persecution he had
suffered was not serious enough to entitle him to asylum is worthless when
set against the persecution that undoubtedly awaits him if he returns to Sri
Lanka.
3.4 The complainant adds that he has been suffering from pleural
tuberculosis since May 1999. He states that he received anti-tubercular
treatment between May and December 1999 in the department of chest medicine
at the teaching hospital of the canton of Vaud, Switzerland. According to
the complainant, the doctors in this department believe that his clinical
progress should be monitored over the next two years, as the medical
condition from which he is suffering must be considered serious. The
complainant claims that essential emergency medical treatment might be
necessary and that hospital conditions in Sri Lanka, notwithstanding the
contrary view of the Swiss Appeal Commission on Asylum Matters, would not
permit appropriate medical treatment.
Observations of the State Party on the Admissibility and Merits of the
Communication
4.1 The State party did not challenge the admissibility of the communication
and made its observations on the merits in a letter dated 21 August 2000.
4.2 The State party first of all considered the decision by the Swiss Appeal
Commission on Asylum Matters.
4.3 The State party notes that, although the Commission considered the
appeal to be manifestly ill-founded and hence could have been summarily
rejected, it nevertheless undertook to examine it in detail.
4.4 The State party recalls that the Commission, like the Federal Office for
Refugees, found that the complainant had not proved he had suffered serious
harm that might give him reason to fear, objectively and subjectively,
persecution if he returned to Sri Lanka. According to the State party, the
complainant has not in fact established that there is a personal, concrete
and serious risk that he will be subjected, if sent back to his home
country, to treatment prohibited under article 3 of the European Convention
on Human Rights and the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment. According to the State party, it
follows from the decision by the Swiss Appeal Commission on Asylum Matters
that, in the light of Switzerland's international commitments, the return ("refoulement")
of the complainant is lawful. The State party recalls that the Commission
rejected the arguments put forward by the complainant, who cited his state
of health in objecting to his refoulement.
4.5 Secondly, the State party considered the merits of the Commission's
decision in the light of article 3 of the Convention and the Committee's
jurisprudence.
4.6 The State party states that the complainant in his complaint merely
recalls the grounds he had invoked before the national authorities.
According to the State party, the complainant produces no new information
that might call into question the decision of the Federal Office for
Refugees of 18 August 1999 and the Commission's decision of 10 December
1999. The State party asserts that the complainant provides no explanation
to the Committee of the inconsistencies and contradictions in his
allegations. On the contrary, according to the State party, the complainant
merely confirms them, since, for reasons unknown to the Swiss authorities,
he claims to have been arrested again on 3 January 1999 by the Colombo
police and then to have been brought before the court on 10 February 1999.
The State party recalls that those claims were supposed to be confirmed,
according to the complainant, by the Colombo police document dated 23 August
1999.
4.7 The State party finds these claims to say the least surprising, since
during the internal procedure, the complainant initially stated
spontaneously that he had not been arrested again by the police or the CID
after April 1997. During the hearing, however, the complainant claimed to
have been arrested by the People's Liberation Organization Tamil Eelam (PLOTE)
in February 1998. According to the State party, it was only in his appeal to
the Commission that the complainant indicated, in a very vague way and
completely contradicting his earlier claims, that he had been arrested or
detained by the police or the CID on several occasions between February 1998
and his departure for Switzerland.
4.8 The State party points out that, although the document allegedly drawn
up by the Colombo police is dated 23 August 1999, the complainant never said
that he had been arrested in 1999 either during the above-mentioned
hearings, or in his appeal to the Commission of 21 September 1999, or in his
letters to the Commission dated 15 and 19 October 1999. According to the
State party, it is even more surprising that the complainant did not refer
to this document in his request for an extension of the 10 January 2000
deadline for his departure. The State party points out that, since this
document was never produced in the course of the ordinary proceedings, the
complainant could have called for a review of the facts, but had not done
so. The State party points out that such a review is recognized as an
effective domestic remedy within the meaning of article 22, paragraph 5 (b),
of the Convention. The State party is of the view that, in any event, this
document cannot be taken into account in the present case.
4.9 The State party explains that there is good reason to doubt the origin
and content of this document, which, again, was never produced before the
national bodies. The State party observes that it might be wondered why the
complainant is afraid of being prosecuted by the police when the latter
obligingly provide him with a document setting out in chronological order
all the occasions on which he claims to have been arrested. According to the
State party, it would be a strange police force indeed that was kind enough
to provide a person it wished to arrest with the very means of avoiding
arrest. The State party concludes that the 1999 arrest is obviously
implausible and that the document supposedly issued by the Colombo police,
produced in the form of an uncertified copy, has no probative value.
4.10 After recalling the Committee's jurisprudence and its general comment
on the implementation of article 3, the State party states that, in the case
under consideration, the Swiss Government entirely agrees with the grounds
given by the Commission in support of its decision to turn down the
complainant's application for asylum and to confirm his expulsion. With
regard to article 3 of the Convention, the State party wishes to point out,
by way of a preliminary remark, that according to the Committee's
jurisprudence (communication No. 57/1996, P.Q.L. v. Canada), this provision
affords no protection to a complainant who simply claims to fear arrest upon
returning to his country. The same conclusion applies a fortiori to the mere
risk of arrest (communication No. 65/1997, I.A.O. v. Sweden). The State
party recalls that, in the present case, the complainant in fact claims that
he would be arrested for not fulfilling his obligation to report to the CID
office once a week.
4.11 The State party asserts that it is because the arguments were
persuasive that the Commission considered the complainant's claims to be
lacking in credibility. According to the State party, these arguments are
not weakened by the mere fact that the complainant is now transmitting to
the Committee for the first time a document which was allegedly issued by
the Colombo police on 23 August 1999, according to which the complainant had
been arrested again on 3 January 1999 and was wanted by the police for
having failed to report to the CID office. The State party points out that
the complainant should have and could have provided this information to the
Swiss authorities during the internal procedure, as an asylum-seeker is
bound by a duty to cooperate. The State party finds it particularly
surprising that, when the complainant appeared before the Swiss authorities
he never mentioned his arrest on 3 January 1999, even though this supposedly
took place shortly before he left Sri Lanka. The State party adds that the
complainant also argues that he was subjected to torture while under arrest
and that the Sri Lankan authorities bound and beat him. However, according
to the State party, the Swiss doctors who examined the complainant and
administered his anti-tubercular treatment never reported any suspected
after-effects of acts of violence.
4.12 The State party explains that, quite apart from these inconsistencies,
it should be pointed out that the complainant's allegations in connection
with the arrest on 3 January 1999 and the arrest warrant are implausible.
During the cantonal hearing, the complainant explicitly stated that, after
his arrest in Colombo by the PLOTE in February 1998, he was released "on
condition that he return immediately to Kilinochchi", adding that members of
the PLOTE "told me not to return to Colombo". If he had returned to Colombo,
the complainant would allegedly have been in danger of being "detained for
longer, without being brought before a court". According to the State party,
however, these assertions with regard to the arrest by the Colombo police on
3 January 1999 and, especially, the judge's order that the complainant be
released on condition that he report to the CID office every Saturday
clearly lack credibility.
4.13 Lastly, the State party believes that the complainant's explanations
concerning the way he left Sri Lanka need, at the very least, to be treated
with caution. The complainant does not explain, in particular, how he was
able to leave the country from Colombo airport although wanted by the
police. According to the State party, the extremely tight security controls
in operation at the airport would never have allowed the complainant to
check in for the flight and pass through police and border controls. The
State party considers it unlikely that he could, as he claims, have been
assisted by a trafficker, who allegedly told him not to speak to the customs
officers and would have promised to intervene if questions were asked.
According to the State party, the facts show that, on the contrary, there is
no evidence that the complainant was being sought by the police on the day
of his departure, on 24 or 25 March 1999.
4.14 The State party concludes that there is therefore reasonable doubt as
to whether the complainant is wanted by the Sri Lankan authorities. It is
also unlikely that the author would be at risk of arrest if he returned to
his country. However, according to the State party, even if such a risk
existed, it would not be sufficient to conclude that there were substantial
grounds for believing that he would be in danger of being subjected to
torture (communications Nos. 157/1996 and 65/1997).
4.15 With regard to the health grounds cited by the complainant, the State
party points out that the Commission took them into account. On the basis of
two medical certificates, it concluded that the basic anti-tubercular
treatment had been completed and that the complainant no longer suffered
from any life-threatening or health-threatening condition. According to the
State party, the new medical certificate dated 6 January 2000, on which the
complainant based his argument, merely confirms this conclusion. After
consultations, the surgeons who saw the patient decided not to perform a
surgical decortication. The State party adds that, even if an operation
should prove necessary, which is not the case at present according to the
above-mentioned certificate, it could be performed in Colombo. According to
the State party, the same is true of the health check-ups and any medical
treatment the complainant might require. The State party states that the
Commission was therefore right to conclude that the medical services
available in Colombo could be considered satisfactory and able if necessary
to provide any treatment needed by the complainant.
4.16 In the light of the above arguments, the State party concludes that
there is nothing to suggest that there are substantial grounds for fearing
that the complainant would actually be personally at risk of torture on
returning to Sri Lanka. According to the State party, the complainant's
allegations also fail to prove that sending him back to Sri Lanka would
expose him to a real, concrete and personal risk of being tortured.
Comments by the Complainant on the State Party's Observations
5.1 The complainant points out that the contradictions and inconsistencies
found in his allegations and cited by the Swiss Government to confirm the
decision of the Swiss Appeal Commission on Asylum Matters should be seen in
the context of the way in which he was heard by the Swiss authorities when
he arrived. In this respect, the complainant states that he was seriously
ill with tuberculosis and that he was in an extremely weak condition when he
had to answer all the questions of the Swiss authorities. The complainant
asserts that, given his condition, it is obvious that certain details might
have been forgotten or badly explained and that, moreover, six months after
his arrival he had needed to be hospitalized for three weeks.
5.2 The complainant then contests the arguments of the Federal Office for
Refugees casting doubt on his flight from Colombo, stating that he had
called on the services of a trafficker precisely to avoid police and customs
controls at Colombo airport.
Issues and Proceedings Before the Committee
6.1 Before considering a complaint, 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. In this case, the Committee also notes that all domestic
remedies have been exhausted and that the State party has not contested
admissibility. It therefore finds the complaint admissible. Since both the
State party and the complainant have provided observations on the merits of
the complaint, the Committee proceeds with the consideration of the merits.
6.2 The issue before the Committee is whether the expulsion of the
complainant to Sri Lanka would violate the State party's obligation under
article 3 of the Convention not to expel or return a person to a State where
there are substantial grounds for believing that he or she would be in
danger of being subjected to torture.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the complainant would be in
danger of being subjected to torture if returned 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 would be returned. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in the country does not by itself constitute a sufficient
ground for determining that a particular person would be in danger of being
subjected to torture upon returning to that country. There must be other
grounds indicating that he or she 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 subjected to torture in his or her specific
circumstances.
6.4 The Committee recalls its general comment on the implementation of
article 3, which reads as follows: "Bearing in mind that the State party and
the Committee are obliged to assess whether there are substantial grounds
for believing that the author would be in danger of being subjected to
torture were he/she to be expelled, returned or extradited, the risk of
torture must be assessed on grounds that go beyond mere theory or
supposition. However, the risk does not have to meet the test of being
highly probable" (A/53/44, annex IX, para. 229).
6.5 In the present case, the Committee notes that the State party has drawn
attention to inconsistencies and contradictions in the complainant's
account, casting doubt on the truthfulness of his allegations. It also takes
note of the explanations provided by counsel in this respect.
6.6 The Committee also notes that it has not been clearly established that
the complainant was wanted by the Sri Lankan police or CID or that the
Colombo police document be provided as evidence was genuine, it being indeed
surprising that this document, dated 23 August 1999, was never shown to the
Swiss authorities, even when the complainant applied to have the 20 January
deadline for his departure extended.
6.7 Furthermore, the Committee believes that there is insufficient support
for the complainant's allegations of having been tortured in Sri Lanka and
that, in particular, his allegations are not corroborated by medical
evidence, even though the complainant received medical treatment in
Switzerland shortly after his arrival.
6.8 The Committee is aware of the seriousness of the human rights situation
in Sri Lanka, and of reports alleging the practice of torture there.
However, it recalls that, for the purposes of article 3 of the Convention, a
foreseeable, real and personal risk must exist of being subjected to torture
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
been established.
6.9 The Committee against Torture, acting under article 22, paragraph 7, of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the decision of the State party to
return the complainant to Sri Lanka does not constitute a breach of article
3 of the Convention.
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