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Submitted by : U.
S. [FN1]
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[FN1] The petitioner has specifically requested that his name not be used in
the published decision or any other public document in which this petition
is reproduced. His name should thus be removed once the Committee has
decided the case.
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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 1 May 2003,
Having concluded its consideration of complaint No. 197/2002, submitted to
the Committee against Torture by Mr. U. S. 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 complaint, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The petitioner is Mr. U. S., a Sri Lankan citizen, currently residing in
Finland, and awaiting deportation to Sri Lanka. He claims that his forced
return to Sri Lanka would constitute a violation, by Finland, of article 3
of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment. He is represented by counsel.
1.2 On 10 January 2002, the Committee forwarded the communication to the
State party for comments and requested, under rule 108, paragraph 1, not to
return the petitioner to Sri Lanka while his communication was under
consideration by the Committee. The State party has acceded to this request.
The Facts as Submitted by the Petitioner:
2.1 The petitioner was a member of the People's Liberation Organisation of
Tamil Eelam (PLOTE) until 1985, when the organization was forbidden by the
Liberation Tigers of Tamil Elam (LTTE). In 1985, the LTTE arrested the
petitioner and detained him for four months, during which he was
interrogated on the location of PLOTE's weapons. Subsequently, the LTTE
interrogated him on several occasions.
2.2 During this period, the petitioner was working as a bus conductor and
traveling between areas controlled by the LTTE and the Sri Lankan army. In
view of his occupation and the fact that he was no longer a member of the
PLOTE, the PLOTE suspected him of cooperating with the LTTE and informed the
Sri Lankan army of their suspicion.
2.3 In March 1987, the petitioner was arrested by the Sri Lankan army and
detained for almost two years. During his detention, the petitioner was
allegedly tortured on a regular basis for a period of six months. He was
beaten, kicked, hung in the "chicken position" where he was left to hang
from his left shoulder, his genitals were "injured", his hands were burned
with a hot object, and he was given electrical shocks while cold water was
poured over him.
2.4 After his releas on 2 January 1989, the petitioner was re-arrested and
interrogated 3-4 times, for up to three days each, by the Indian Peace
Keeping Force (IPKF). He was also interrogated by the LTTE in order to find
out what he had told the IPKF about members of the LTTE.
2.5 In June 1989, the petitioner escaped to Germany, where he applied for
asylum. His application was rejected, and he immediately attempted to go to
France. French police arrested him and returned him to Germany. From
Germany, he was returned to Sri Lanka in July 1989. On his return, he stayed
in the LTTE controlled area of Jaffna until 1995. He was interrogated
several times by the LTTE to find out whether he had any connections with
the PLOTE.
2.6 In 1996, after the Sri Lankan army occupied Jaffna, the petitioner
escaped to Vanni, where he lived with relatives, and then moved on to
Hatton. During his time in Hatton, he was arrested twice by the Sri Lankan
army, as he was new in the area. In 1998, he was arrested by the Sri Lankan
police and detained for three months on suspicion of being a LTTE member.
During his detention he was severely beaten; he remains scarred on his lips
and behind his ear, as a result of being hit by a gun. In March 1998, and
after bribing the police, he was released.
2.7 After his release, the petitioner escaped through Russia to Finland
where he arrived on 21 December 1998. He immediately applied for asylum. On
12 February 2001, the Directorate of Immigration rejected his application
and issued a deportation order against him. On 13 November 2001, the
Helsinki Administrative Court rejected his appeal. The petitioner then
applied for leave to appeal and suspension of the deportation order to the
Supreme Administrative Court. On 31 December 2001, his application was
rejected.
2.8 The petitioner underwent several physical and psychological examinations
after his arrival in Finland. He has submitted six medical reports, three on
his physical condition and three on his psychological state dated between 9
October 1999 and 7 January 2002. The reports of 21 September 2000 and 5
October 1999 refer to scars to his lip and behind his left ear. The report
of 7 January 2002 states that he suffers from post traumatic stress
disorder, that he has a shoulder injury which fits the description of having
been hung from one arm, and that he has mental and physical traumas and
scars, which were "possibly caused by torture".
The Claim
3.1 The petitioner claims to have exhausted domestic remedies with the
dismissal of his application, by the Supreme Administrative Court, for leave
to appeal against the deportation order. [FN2]
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[FN2] The decisions are enclosed in the Finnish language only.
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3.2 The petitioner claims that there are substantial grounds to believe that
he would be subjected to torture if returned to Sri Lanka, in violation of
article 3 of the Convention. He stresses that the human rights situation in
Sri Lanka continues to be poor, particularly as concerns members of the
Tamil population, and that persons suspected of LTTE membership are in
danger of disappearing and being arbitrarily detained and tortured.
The State Party's Observations on the Admissibility and Merits
4.1 On 8 March 2002, the State party submits that it has no objections to
the admissibility of the case. On 9 July 2002, submits its observations on
the merits. The State party contests the petitioner's version of the facts
as partly inaccurate, in particular his statements relative to his
application for asylum in Germany and the events thereafter. It directs the
Committee to the decision of the Directorate of Immigration which is alleged
to refer to a number of inconsistencies in the petitioner's description of
events. The State party submits that the petitioner's claims have been
considered fairly in the domestic proceedings. It refers to particular
asylum cases where the Supreme Court repealed its decision on deportation,
to demonstrate that every case is assessed on its relevant circumstances.
4.2 By decision of 22 October 2001, the Directorate of Immigration assessed
the petitioner's personal situation. It found that the course of events from
1983 to 1989 had no immediate impact on the petitioner's decision to leave
his country of origin. According to the petitioner, he returned to his home
town, Jaffna, after his application for asylum had been refused by the
German authorities. He resided there without problems until 1996, when the
Sri Lankan army occupied Jaffna, and when most of the local residents had to
move to Vanni. The alleged torture, which took place approximately ten years
before the petitioner arrived in Finland, does not as such provide
substantial grounds for believing that the petitioner would still be in
danger of being subjected to torture.
4.3 The State party submits that the arrests which, according to the
petitioner, took place in 1998 give no reason to believe that the Sri Lankan
authorities would be particularly interested in the petitioner's activities,
as according to the petitioner himself, they were due to the fact that he
was new in the area and a suspected LTTE militant. The State party notes
that, upon release after his second arrest, he continued to stay two more
weeks in Hatton, where he had been arrested, and thereafter in other
government-controlled areas, until he left the country. The State party
concludes that there is no indication that the petitioner is personally
targeted by the Sri Lankan authorities.
4.4 The State party emphasizes that since the end of the 1980's, the
petitioner has not been politically active, nor has he participated in the
activities of the LTTE. Thus, there are no substantial grounds for believing
that he would be in danger of being subjected to torture in his country of
origin.
4.5 Although the State party concedes that the medical reports largely
support the petitioner's statements concerning his injuries, it argues that
they indicate that some healing has already occurred, and that the
petitioner no longer requires anti-depression medication. It acknowledges
that he still needs regular psychiatric treatment and physiotherapy, but
submits that the relevance of the medical reports must be assessed in
conjunction with the other facts of the case.
4.6 The State party submits that the petitioner does not display symptoms
that could not be treated in his country of origin, and that his state of
health is no obstacle to the enforcement of the deportation decision.
Considering that the events which allegedly affected the petitioner's health
took place in the 1980's, his state of health does not provide substantial
grounds for believing that he would be in danger of being subjected to
torture in his country of origin.
4.7 The State party submits that, in the past few years, the human rights
situation in Sri Lanka situation has significantly improved. It refers to a
document prepared by the UNHCR in 1999 to the EU High Level Working Group on
Asylum and Migration, which stated that asylum seekers, who have not been
found to fulfill refugee criteria may be returned to Sri Lanka. It refers to
the cease-fire reached on 23 February 2002, with which the armed forces of
Sri Lanka and the LTTE have since complied. Since then, residents need no
longer report at military checkpoints. It also refers to a statement by a
UNHCR representative of 21 May 2002, according to which 71,000 Tamil
refugees returned home that year, including more than half of whom returned
to the Jaffna area. In the State party's view, therefore, in light of the
continuing improvement in the situation in Sri Lanka there is no
foreseeable, real and personal risk that the petitioner will be tortured on
return.
Petitioner's Comments on the State Party's Submission
5.1 In his response, the petitioner reiterates the facts as stated in his
initial submission and provides new information. He submits that in August
1985, he buried arms belonging to the Eelam Liberation Organization (TELO),
another organization banned by the LTTE, in the garden of his family home.
As the LTTE in effect controls the lives of Jaffna residents, the petitioner
is afraid of the serious consequences both he and his family will face
should the LTTE receive information on these arms. He claims that the LTTE
consider the hiding of weapons and ammunition as a serious offence against
the organization and would react harshly to such an act. In addition, as
this act constitutes a crime under Sri Lankan law he risks being prosecuted
by the authorities. He claims that it was due to fear that he did not
provide this information during the asylum procedure. In only bringing up
this matter at this stage, the petitioner refers to the jurisprudence of the
Committee, with which a victim of torture cannot be expected to give a full
and coherent account of his past experiences during the asylum procedure. He
also refers to the acceptance by the UNHCR that a person, who owing to his
experiences was afraid of the authorities in his country of origin, may be
distrustful of all authorities.
5.2 In addition, the petitioner submits that after escaping from Sri Lanka
he received information that some of his Tamil friends had been killed, some
had joined the army and some had left Sri Lanka. The PLOTE was disbanded in
2000, when its leader was assassinated in Vavuniya. He also submits that as
he does not hold a National Identity Card, he will be placed in an extremely
risky situation as demonstrated by a report from April 2002 from the UK Home
Office Immigration and Nationality Directorate.
5.3 On the current human rights situation in Sri Lanka, the petitioner
denies that the situation has improved significantly and invokes reports to
this effect of both Human Rights Watch (July 2002) and the U.S. Department
of State (Country Report on Human Rights Practices, 2001). According to the
former report, there has been little formal attention to human rights
concerns in the context of the peace process, in spite of the fact that the
civil war has been driven by grave abuses of human rights committed by all
sides. Most of the hundreds of detainees are Tamils arrested on suspicion of
being linked with the LTTE, the Memorandum of Understanding is not a human
rights instrument and there has been evidence of continuing abuse since its
acceptance. According to the latter report, there have been serious human
rights problems in some areas and the ongoing war with the LTTE continued to
lead to serious human rights abuses by both sides. The security forces and
police continue to torture and mistreat detainees in police custody and
prisons, particularly Tamils suspected of supporting the LTTE. For these
reasons, the petitioner expresses the view that there is no credible
evidence that the human rights situation has permanently and significantly
changed in order to argue justifiably that gross, flagrant or mass
violations of human rights no longer occur in Sri Lanka.
5.4 With respect to the medical reports, the petitioner acknowledges that
some healing has occurred but that this is immaterial in assessing whether
he has been a victim of torture. To him, the State party fails to
acknowledge that he was tortured not only in the 1980's but also during his
three-month detention in 1998. He argues that it is improbable that the Sri
Lankan health care system could provide him with the specialized treatment
he needs. On this issue, although he acknowledges that his state of health
may not per se constitute substantial grounds for believing that he is in
danger of being subjected to torture, it does constitute a relevant fact
within the meaning of article 3, paragraph 2 of the Convention in assessing
the existence of such a danger.
5.5 The petitioner submits that "the issue at hand is whether ... [there
is].... a substantial danger of being subjected to torture in Sri Lanka, not
whether he has had a fair asylum procedure in Finland." Thus, the issue
touches on the interpretation of article 3 of the Convention, not whether
the Finnish asylum decision has been procedurally and materially legal.
5.6 The petitioner argues that the criteria applied by the Committee in the
Elmi v. Australia [FN3] case on the broadened notion of "public official or
other person acting in an official capacity" applies also to the role of the
LTTE in the areas under its control in Sri Lanka. He refers to the exercise,
by the LTTE, of quasi-governmental powers in the north and east of the
country where it has been in control, the fact that it has been accepted as
a negotiating party to the peace negotiations,and that it has recently
opened a political office in Jaffna, with the support of the Sri Lankan
government. Thus, the petitioner argues, the fear of torture he fears from
the LTTE is material in assessing the risk of a breach of article 3.
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[FN3] Communication No. 120/1998.
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5.7 The petitioner reiterates that his past experiences of torture caused
him severe mental suffering and physical injuries. He argues that due to the
unsettled situation in Sri Lanka it is justified to state that he would, in
addition to a substantial risk of torture, feel extremely anxious about life
in Sri Lanka. He points out that according to his psychiatrist he is in need
of specialized treatment and is thus mentally vulnerable to the emotional
stress life in Sri Lanka would inevitably cause him. Thus, this in itself
may constitute suffering tantamount to torture.
State Party's Supplementary Comments
6.1 On 28 February 2003, the State party submits that the new information
provided by the petitioner on his activities on behalf of the TELO is
unreliable as it had never been mentioned by the petitioner until his letter
to the Committee of 4 November 2002. His explanation that he was afraid that
the LTTE would find out about his activities does not explain his failure to
mention this incident earlier in the same way that he mentioned his
activities carried out on behalf of the PLOTE, which also acted against the
LTTE. Moreover, given that the alleged activities took place nearly twenty
years ago, it would be unlikely that the petitioner would be subject to
retaliation by the LTTE.
6.2 The State party also submits that the fact that the petitioner returned
to Sri Lanka without any adverse consequences after being refused asylum in
Germany, supports the view that he would not be personally at risk of being
subjected to torture upon his return to Sri Lanka. It refers to the reports
submitted by the petitioner on the human rights situation in Sri Lanka and
observes that the Directorate of Immigration as well as the national courts
already took these reports into account when considering his application for
asylum. It also observes that, at least on two occasions, the Committee
found that the LTTE may not be considered an authority within meaning of
article 3 of the Convention. [FN4]
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[FN4] The State party refers to Communication No. 49/1996, SV et al v.
Canada, Decision of 15 May 2001 and Communication No. 138/1999, MPS v.
Australia, Decision of 30 April 2002.
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Issues and Proceedings Before the Committee
7.1 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.
7.2 The issue before the Committee is whether or not the forced return of
the petitioner to Sri Lanka would violate the obligation of Finland under
article 3 of the Convention not to expel a person to another State where
there are substantial grounds for believing that he would be in danger of
being subjected to torture.
7.3 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 this determination,
however, is to establish whether the individuals 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.
7.4 The Committee observes its general comment on the implementation of
article 3 which reads:
"Bearing in mind that the State party and the Committee are obliged to
assess whether there are substantial grounds for believing that the
petitioner 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 suspicion. However, the risk does not
have to meet the test of being highly probable" (A/53/44, annex IX, para.
6).
7.5 The Committee observes that the State party's obligation to refrain from
forcibly returning a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected
to torture is directly linked to the definition of torture as found in
article 1 of the Convention. For the purposes of the Convention, according
to Article 1, "the term 'torture' means any act by which severe pain or
suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a
third person, or for any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity".
7.6 As to the possibility of the petitioner suffering torture at the hands
of the State upon his return to Sri Lanka, the Committee has taken due note
of the petitioner's claim that he was previously detained and tortured by
members of the Sri Lankan army. It further observes that the petitioner
provided medical reports attesting to injuries that were "possibly caused by
torture", though none of the reports conclusively confirms that he was
tortured during his detention in 1998. The State party does not challenge
the authenticity of these reports but notes that the reports themselves
attest to a gradual improvement of the author's health and that treatment
for his current medical condition would be available in Sri Lanka. The State
party does not concede that such torture as the author might have been
subjected to was suffered at the hands of the Sri Lankan army – in any
event, such events would have occurred over the years ago.
7.7 The Committee notes the relevance of the ongoing peace process, which
led to the conclusion of the February 2002 cease-fire agreement between the
Government and the LTTE, and the negotiations between the parties to the
conflict which have taken place since. It further recalls the results of the
proceedings concerning its inquiry on Sri Lanka under article 20 of the
Convention and its conclusion that, although a disturbing number of cases of
torture and ill-treatment as defined by articles 1 and 16 of the Convention
are taking place, its practice is not systematic in the State party (Report
A/57/44, Chapter IV.B., paragraph 181). It finally notes the opinion of the
Office of the High Commissioner for Refugees of March 1999, according to
which those who do not fulfill refugee criteria, including those of Tamil
origin, may be returned to Sri Lanka, and that a large number of Tamil
refugees returned to Sri Lanka in 2001 and 2002. In this context, it should
also be noted that the petitioner has not been politically active since the
mid-1980's.
7.8 The Committee recalls that , for article 3 of the Convention to apply,
the individual concerned must face a foreseeable and real risk of being
subjected to torture in the country to which he/she is being returned, and
that this danger must be personal and present. In the light of the
observations in paragraphs 7.6 and 7.7 above, the Committee does not
consider that the existence of a personal and real risk has been established
by the petitioner.
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, concludes that the petitioner's removal to Sri
Lanka by the State party would not constitute a breach of article 3 of the
Convention.
[Adopted in English, French, Russian and Spanish, the English text being the
original version. Subsequently to be issued also in Arabic and Chinese as
part of the Committee's annual report to the General Assembly.]
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