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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 5 May 2003,
Having concluded its consideration of complaint No. 191/2001, submitted to
the Committee against Torture by Mr. S.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
complainant, his counsel and the State party,
Adopts the following:
Decision Under Article 22, Paragraph 7, of the Convention
1.1 The complainant is Mr. S. S. , a Sri Lankan national belonging to the
Tamil population group, born on 27 November 1956 in Kayts (Jaffna),
currently residing in the Netherlands and awaiting deportation to Sri Lanka.
He claims that his forcible return to Sri Lanka would constitute a violation
by the Netherlands 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 23 October 2001, the Committee forwarded the complaint to the State
party for comments and requested it, under Rule 108, paragraph 1, of the
Committee's rules of procedure, not to expel the complainant to Sri Lanka
while his complaint was under consideration by the Committee. The State
party acceded to this request.
The Facts as Submitted by the Complainant
2.1 The complainant lived in the Jaffna district from 1989 until 1995, where
he worked as a karate teacher and also gave lessons to members of the
Liberation Tigers of Tamil Eelam (LTTE). Although he sympathized with the
LTTE, he refused to give lessons at their military camps. When the Sri
Lankan army took over Jaffna in late 1995, he fled to Chavakachchery, and
thereafter to Killinochi, together with his wife and children.
2.2 On 7 April 1996, the complainant's mother died in Trincomalee, which was
controlled partly by the LTTE, partly by the Sri Lankan army. The
complainant wanted to travel to Trincomalee to pay tribute to his deceased
mother but was refused a travel pass by the LTTE because he did not have
anyone to vouch for him. [FN1] In June 1996, in return for free karate
lessons which he gave to some LTTE members, he finally managed to obtain
permission to travel to Mullaitivu - still located in the LTTE-controlled
area - together with a guide. After staying in Mullaitivu for two months at
the house of a fisherman, he traveled to the Trincomalee district on a
fishing boat. He hid for two to three months with a Tamil in the
Anbuvelipuram district of Trincomalee before he went to his sister's house
in the centre of Trincomalee in November 1996.
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[FN1] Counsel submits that the travel pass system applies to everyone
wishing to leave the LTTE-controlled area and is intended to raise funds for
the armed struggle of LTTE. In order to ensure that the departure of Tamils
does not result in a loss of contributions, each Tamil planning to leave the
LTTE-controlled area needs someone with sufficient assets to guarantee for
his return.
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2.3 On 13 December 1996, two days after the LTTE had bombed a military camp
of the Sri Lankan army, the army conquered Trincomalee and arrested a large
number of people, including the complainant. Everyone above the age of
twelve had to stand in front of a temple where a masked man picked out the
complainant and other men. The complainant was brought to a military camp in
Trincomalee where he was detained for approximately two months. He was
locked with four other men in a narrow cell with little light and a concrete
floor and without any furniture. He was given one daily meal of poor
quality. Since the cell did not have a toilet, the prisoners had to relieve
themselves in the corners of the room, excrements being removed from the
cell occasionally. Reportedly, the soldiers entered the cell regularly,
especially following armed attacks by the LTTE, to maltreat the prisoners by
kicking and beating them, sometimes asking questions at the same time. The
complainant states that he was asked whether he was a karate teacher, which
he denied. He and the other men were often naked or, respectively, dressed
in underwear only. Frequently, the soldiers poured water on them before the
beating began. The complainant was beaten in many different ways: with the
flat hand, the fist, the back of a rifle and with a rubber rod. Once he was
allegedly beaten on his soles with a round stick causing him severe pain in
his feet for several days. Another time, he was put against a cupboard with
his hands up and was hit on his back with a rubber rod causing him chronic
pain in the back, which allegedly persists to date. He was fist-punched on
his eye, leaving an injury on one of his eyebrows. Soldiers also beat him on
the genitals and on the kidneys, which resulted in a swollen testicle and
blood in his urine. Moreover, he was allegedly burned with a hot stick on
his left arm, leaving scars. The big toe of his right foot was severely
injured when his torturers stamped on that foot with their boots. When the
soldiers hit his right hand with a broken bottle and asked him "Aren't you a
karate teacher?", he lost consciousness.[FN2]
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[FN2] The complainant's description of most of these torture details is
documented in a medical report, dated 14 June 2001, by the medical
examination group of the Dutch Section of Amnesty International.
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2.4 The complainant woke up in a hospital in the military camp where he
stayed for a few days until an unknown Muslim man named Nuhuman managed to
organize his escape. The complainant suspects that his sister had paid money
to Nuhuman and that the latter had bribed the guards in front of his
hospital room. The complainant states that, together with Nuhuman, he was
able to leave the hospital and the military camp without any difficulty.
2.5 Nuhuman drove the complainant to Colombo from where he left Sri Lanka by
plane on 14 February 1997, under the name of Mohamed Alee, using a forged
Sri Lankan passport. He first flew to Dubai and then to Ukraine, where he
stayed for five months. On 1 August 1997, a Russian "travel agent" took him
to an unknown place by truck from where he crossed a river together with
five other Tamils. They were brought to a city in Poland unknown to the
complainant and took a train to Berlin. On 14 August 1997, the Russian guide
brought the complainant to the Netherlands where he applied for admission as
a refugee and for a residence permit on 15 August 1997. The same day, he was
first interviewed by an officer of the Dutch Immigration and Naturalization
Department (IND), who asked him about his identity and nationality, civil
status, family connections, travel and other documents, the date and manner
of departure from Sri Lanka, as well as the route by which he traveled to
the Netherlands.
2.6 By letter of 16 February 1998, the complainant filed an objection with
the IND against its failure to take a decision on his refugee application
within the prescribed time limit of six months. On 7 April 1998, he lodged
an appeal with the District Court in Zwolle against the IND's failure to
take a timely decision on the objection. He withdrew the appeal on 4 June
1998 after the IND had promised to expedite its decision, but renewed it by
letter, dated 28 August 1998, because IND had not kept its promise. By
decision of 18 November 1998, the district court ordered the IND to decide
on the complainant's application within six weeks.
2.7 On 6 October 1998, the complainant was interviewed a second time,
assisted by an interpreter. In the three-hour interview, the complainant
reiterated his statement made during the first interview that his wife was
three months pregnant when he left her in June 1996, that he did not meet
her again after he had left Killinochi, and that he was hiding during his
two-month stay in Mullaitivu. As to his family situation, he stated that his
father had died during a bombing raid by the Sri Lankan army and that one of
his daughters had died of fever because she could not be brought to a
hospital in time due to a curfew. By letter of 1 December 1998, the
complainant's former lawyer challenged the circumstances of the second
interview. At the same time, he submitted letters the complainant had
received from his wife, indicating that she had given birth to a child on 21
May 1997.
2.8 On 11 February 1999, the complainant was heard by an IND committee. The
hearing concentrated on the contradiction between the complainant's
statement that his wife was three months pregnant when he left her in June
1996 and the fact that she gave birth to a child on 21 May 1997. At the end
of the hearing, the complainant's former lawyer told the commission that he
would clarify this matter. By letter of 26 February, the lawyer informed the
IND that the complainant insisted that his wife had been three months
pregnant in June 1996. Furthermore, he was not hiding in the strict sense of
the word while staying in Mullaitivu and his wife occasionally visited him
there. His wife had a miscarriage, a fact not easily spoken about in Hindu
culture especially since, in Hindu religion, the birth of the lost child
would have represented the rebirth of the complainant's deceased mother. The
complainant did not even tell his closest brother about this loss until
February 1999.
2.9 On 15 March 1999 and on 22 April 1999, the IND asked the Bureau for
Medical Advice (BMA) whether the complainant needed medical treatment and
whether he was healthy enough to travel. On 20 May 1999, the IND rejected
the objection against its failure to take a timely decision on the
complainant's refugee application. At the same time, the complainant was
informed that his expulsion would be suspended pending receipt of medical
advice by the BMA. The IND justified its decision as follows: (a) The fact
that the complainant is a Tamil was not by itself considered sufficient to
be granted asylum; (b) the contradiction in the complainant's statements
about the pregnancies of his wife and his hiding in Mullaitivu; (c) the
implausible description of the complainant's escape from the military
hospital considering that, pursuant to his own account, he was a relatively
important prisoner; and (d) the absence of humanitarian reasons
necessitating a staying permit. The IND concluded that the complainant would
not be exposed to a risk of torture if he were returned to Sri Lanka and
that there was no basis to apply the policy on post-traumatic stress
disorder as a ground for admission, since his allegations of torture were
not credible. The decision was accompanied by advice on applicable remedies
informing the complainant that his expulsion would be suspended upon appeal
to court.
2.10 On 16 June 1999, the complainant lodged an appeal with the district
court in Zwolle against the above decision, arguing as follows: (a) The IND
was not justified in rejecting his explanation regarding the pregnancies of
his wife; (b) his detailed description of the facts as well as visible scars
on his body refuted IND's conclusion that his allegations of torture lacked
credibility; (c) bribing soldiers was a widespread phenomenon in Sri Lanka
and a plausible explanation for his release from the military hospital; (d)
the IND failed to take into account statements made by his brother twelve
years ago in the context of his own application for asylum in the
Netherlands confirming that the complainant had always had problems because
of his karate background; and (e) that his experience of torture was
sufficiently traumatizing for the policy on post-traumatic stress disorder
to be applied in his case.
2.11 Medical advice by BMA was given on 14 December 1999, stating that, at
the time the advice was issued, the complainant suffered from a medical
condition including pain on his lower back and problems with his eyes, that
he no longer received any specific medical treatment, that he was able to
travel and that no medical emergency situation was to be expected.
2.12 By letter of 8 November 2000, the IND informed the complainant that the
suspension of his expulsion would be lifted. By letter of 15 November 2000,
the lawyer of the complainant submitted an application for an interim
injunction to the Hague District Court.
2.13 At the request of the complainant's lawyer, the medical examination
group of the Dutch Section of Amnesty International issued a medical report
on 12 June 2001, stating that the complainant has several scars on his body
and cannot fully stretch his index finger. While the scars on his body,
especially burn marks on his left arm, a wound on his toe and a piece of
dark skin near his eye, seemingly confirmed his torture allegations, the
problem with the complainant's index finger might have been caused by the
alleged hits with a broken bottle. The report also states that no anatomical
damage of the complainant's back can be diagnosed but that this fact does
not exclude a possible relationship between the apparent chronic back pain
of the complainant and the beatings he allegedly suffered. Moreover, the
report concludes that the psychological symptoms shown by the complainant,
such as permanent suffering from his past experiences, his increased
sensitivity and over-anxiousness, his problems of concentration, as well as
insomnia, are typical signs of a post-traumatic stress disorder.
2.14 On 2 July 2001, the Hague District Court dismissed the appeal against
the decision by the IND of 20 May 1999 as unfounded and declared the
application for interim measures inadmissible. It considered that the
complainant's allegations lacked credibility because of the contradictory
statement on the pregnancies of his wife and because of his failure to state
the truth on whether he was hiding during his stay in Mullaitivu. The Court
also held that no grounds existed for applying the policy on post-traumatic
stress disorder and that the complainant did not suffer any disadvantage
from the fact that the IND rendered its decision without having waited for
the BMA's medical advice. Moreover, the Court considered that the
complainant did not belong to a category of persons who would be at risk of
being treated in violation of article 3 of the European Convention for the
Protection of Human Rights and Fundamental Freedoms, if returned to Sri
Lanka.
The Complaint
3.1 Counsel claims that the findings of the District Court do not rule out
that the complainant runs a substantial risk of being subjected to torture
or other cruel, inhuman or degrading treatment upon return to Sri Lanka and,
therefore, the Netherlands would be violating article 3 of the Convention if
he were returned to that country.
3.2 As to the complainant's credibility, counsel submits that the essential
part of his statements relate to the time when he was detained in the
Trincomalee military camp rather than to the question when his wife was
pregnant or when she gave birth.
3.3 Counsel complains about the circumstances under which the second
interview was conducted by the IND and about the manner in which the
complainant was confronted with the inconsistencies in his statements about
the pregnancies of his wife and about his hiding in Mullaitivu.
3.4 Counsel submits that, apart from the medical advice by the BMA, the IND
should have considered the medical report by the Amnesty International
medical research group, which, according to counsel, corroborates the
complainant's allegations and confirms that he is traumatized. Counsel
claims that the benefit of the doubt should be applied in favor of the
complainant since fool proof evidence hardly ever exists in asylum cases.
3.5 According to counsel, the complainant cannot be returned to the part of
Sri Lanka which is controlled by the LTTE, because the situation in that
area is generally unsafe due to military operations by the LTTE as well as
by the Sri Lankan army and because the complainant has to fear sanctions for
having left that area without LTTE approval. By the same token, the
complainant cannot, in counsel's view, be sent to the South of Sri Lanka
where he would be at risk of being tortured since (a) his past as a
well-known karate teacher would raise the suspicion of involvement with the
LTTE; (b) the scars on his body may lead to the conclusion that he was
involved in the armed struggle of or at least trained by the LTTE; and (c)
his Tamil origin, his inability to speak Sinhalese and the fact that he
neither has an ID nor a valid reason for wanting to stay in the South
increase the risk of being arrested, and eventually tortured, by the Sri
Lankan police. [FN3]
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[FN3] Counsel refers to several reports on the human rights situation in Sri
Lanka as well as a judgment of the European Court of Human Rights in order
to support these claims. However, Committee members should beware that the
complaint dates from October 2001 and that the situation might have changed
since then.
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3.7 Counsel concludes that upon return to Sri Lanka, the complainant would
be exposed to a substantial risk of being arrested and detained for a period
longer than the regular 48 to 72 hours for which Tamils are frequently
detained following identity checks. According to counsel, the risk of being
tortured during such a prolonged period of detention is generally high.
The State Party's Observations on Admissibility and Merits
4.1 On 22 April 2002, the State party submitted its observations on the
merits of the complaint. The State party does not contest the admissibility
of the complaint.
4.2 The State party submits that due to the high population density in the
Netherlands, the admission of asylum seekers to the country is limited to
three grounds for admission: (a) Refugee status under the 1951 Geneva
Convention relating to the Status of Refugees; (b) the preservation of
essential Dutch interests; and (c) compelling reasons of a humanitarian
nature. Refugee status under (a) requires well-founded reasons to fear
persecution on the basis of religious, ideological or political convictions
or nationality or on the basis of membership of a particular race or social
group. In determining whether a person is a refugee, the Dutch authorities
also assess if return to the country of origin would conflict with the State
party's obligations under article 3 of the Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment and under article
3 of the European Convention for the Protection of Human Rights and
Fundamental Freedoms. Asylum applications are dealt with by the IND, which
is subordinate to the Ministry of Justice. After a first and a second
interview with the applicant, the IND officer who conducted the second
interview prepares a report on which the applicant may submit comments.
Based on a legal presumption, failure by the IND to take a decision on the
asylum application within six months constitutes a negative decision against
which the applicant may file an objection. If the applicant invokes medical
grounds for his refugee claim, a medical advice with the legal value of
expert opinion may be sought from the Medical Assessment Section (BMA) of
the Ministry of Justice. Pending the BMA's opinion, the expulsion of the
applicant, if ordered, may be suspended.
4.3 With regard to the human rights situation in Sri Lanka, the State party
refers to three decisions of the District Court of the Hague and the
1996-2001 country reports by the Netherlands' Ministry of Foreign Affairs
which state that the return of rejected Tamil asylum seekers to the
government controlled areas of the West, the center and the South of Sri
Lanka - where no registration with the police or another authority is
required in order to settle - was still a responsible course of action.
However, the 2000 report also states that in these areas Tamils are
frequently detained for up to 72 hours in the context of identity checks.
Moreover, in Colombo, Tamils were occasionally harassed by the Sinhalese
population and sometimes tortured by the police when suspected to be
involved with the LTTE. The country reports also identify a number of risk
factors which contribute either to (1) the general risk of being arrested
for 48-72 hours following an identity check or (2) the aggravated risk of
being detained for a longer period of time in which case the danger to be
tortured increases substantially. Risk factors under (1) include (a) young
age; (b) little knowledge of Sinhalese; and (c) Tamil origin. Risk factors
under (2) include (a) recent arrival in Colombo from one of the country's
war zones; (b) non-possession of valid identity documents; (c) data
contained in police files indicating that a person might be involved in LTTE
activities or might have knowledge of such activities; and (d) scars on the
body of a person in case a suspicion of LTTE involvement already exists. In
case of firm evidence of LTTE involvement, a person can be detained for a
period of up to 18 months under the Emergency Regulations or the Prevention
of Terrorism Act.
4.4 With respect to the complainant's claim under article 3 of the
Convention, the State party submits that, even if a consistent pattern of
gross violations of human rights existed in Sri Lanka, the existence of such
a pattern would not as such constitute a sufficient ground for determining
that a particular person would be at risk of being subjected to torture upon
return to that country. According to the Committee's jurisprudence, [FN4]
specific grounds must exist indicating that the individual concerned would
be personally at risk of being subjected to torture. The State party also
refers to the Committee's jurisprudence that "substantial grounds" in
article 3 require more than a mere possibility of torture. [FN5]
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[FN4] The State party refers to the Committee's decisions in A. v. the
Netherlands, Communication No. 91/1997, UN Doc. CAT/C/21/D/91/1997, 13
November 1998, para. 6.3 and in K.N. v. Switzerland, Communication No.
94/1997, UN Doc. CAT/C/20/D/94/1997, 20 May 1998, para. 10.2.
[FN5] See E.A. v. Switzerland, Communication No. 28/1995, UN Doc.
CAT/C/19/D/28/1995, 10 November 1997, para. 11.3. The State party further
refers to the Committee's General Comment No.1, Implementation of article 3
of the Convention in the context of article 22, UN Doc. UN Doc. A/53/44
(1998), Annex IX, para. 6.
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4.5 In the State party's view, the complainant would not run a real,
personal and foreseeable risk of being tortured if he were returned to Sri
Lanka. The mere fact that he is a Tamil does not in itself constitute
sufficient grounds to establish such a risk. Moreover, the State party
submits that the complainant's statements lack credibility. This was
reflected by the contradiction in his statement that his wife was three
months pregnant in June 1996, and the fact that she gave birth in May 1997.
The complainant had not been able to explain this contradiction when
confronted with that question before the IND commission on 11 February 1999.
Only in a letter of 26 February 1999 of his lawyer, he admitted that he had
not been "hiding" in Mullaitivu and that he had met his wife after her
miscarriage, while he was staying in Mullaitivu. The State party submits
that this explanation differs in essential points from his earlier
statements. Such discrepancy cannot, in the State party's view, be explained
solely by criticizing the poor quality of the translation of the
complainant's statements. Even if his cultural background prevented the
complainant from speaking about his wife's miscarriage, there was no need
for him to make incorrect statements about his stay in Mullaitivu. The State
party also considers his credibility undermined by his statements regarding
his escape from the military camp in Trincomalee. It was unlikely that he
could escape from the camp without any difficulty, while Sri Lankan soldiers
stood watching.
4.6 The State party adds that the complainant has not convincingly
established that the Sri Lankan authorities would treat him as a suspect.
His claim that he would encounter problems with the authorities was based on
speculation unsupported by objective facts, the only evidence substantiating
his claims being the letters from his family and friends. With respect to
possible sanctions by the LTTE which the complainant would have to fear upon
return to the LTTE-controlled part of Sri Lanka, the State party argues that
such sanctions fall outside the definition of torture in article 1 and,
therefore, outside the scope of article 3 of the Convention. Since according
to article 1, "the term 'torture' means any act […] 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", acts by non-State entities
such as the LTTE could not, for the purposes of the Convention, be
considered to constitute torture. [FN6]
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[FN6] In that regard, the State party refers to the Committee's decision in
S.V. et al. v. Canada, Communication No. 49/1996, UN Doc.
CAT/C/26/D/49/1996, 15 May 2001, para. 9.5.
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4.7 As to the Amnesty International medical examination group report, the
State party submits that it merely confirms that the complainant's medical
symptoms are partly consistent with his allegations. It did not imply that
he had satisfactorily established that these symptoms, as well as scars on
his body, were the result of torture.
4.8 The State party concludes that, in the light of the general situation in
Sri Lanka and the personal circumstances of the complainant, no substantial
grounds exist for believing that the complainant would run a real, personal
and foreseeable risk of being subjected to torture upon his return to Sri
Lanka, in violation of article 3 of the Convention.
Complainant's Comments on the State Party's Submissions
5.1 Counsel submits that the complainant was precluded from contesting the
IND's decision of 20 May 1999 on the merits, because he had already objected
to the IND's failure to take a timely decision on his asylum application,
thereby losing the possibility to submit arguments on the substance of his
application to the IND before bringing the case to court.
5.2 With regard to the medical evidence, counsel criticizes that the medical
advice of the BMA was limited to the question whether the complainant's
medical condition required his admission as a refugee without examining the
issue whether his medical complaints as well as his scars corroborated his
allegations of torture. Counsel further claims that the State party has
failed to appreciate the weight of the medical report by the Amnesty
International medical examination group, whose reports are only issued in a
small number of credible cases.
5.3 As regards the general situation in Sri Lanka, counsel complains that
the State party primarily based its assessment on the country reports issued
by the Ministry of Foreign Affairs, without considering other relevant
sources.
5.4 With respect to the State party's challenge to the complainant's
credibility, counsel denies that his client's statements were inconsistent.
He submits that the State party's observation that the complainant qualified
the interview translation as "poor" is a simplification of his argument.
What he emphasized were the different possibilities of translating the word
"hiding" into Dutch, each carrying with it a different meaning.
5.5 Counsel submits that the complainant cannot reasonably be expected to
prove in detail how his release from the military hospital in Trincomalee
came about.
5.6 As to the complainant's personal risk to be tortured upon return to Sri
Lanka, counsel submits that his reputation as a karate teacher increases
this risk. In this respect, counsel criticizes the State party's failure to
consider the statements on the complainant's karate background which his
brother made in the context of his asylum application in the Netherlands.
According to these statements, the complainant had left Sri Lanka in 1984 to
live in Qatar (until 1987) because he was suspected of training LTTE
militants. Furthermore, counsel argues that the fact that the complainant
was tortured in the past, combined with the general danger of LTTE suspects
to be tortured, connotes a high risk that he would be detained and subjected
to torture if he were to be returned to Sri Lanka. This risk was increased
by the likelihood that the complainant's name had been entered into the
database of the National Intelligence Bureau when he was arrested in
Trincomalee in 1996. Counsel considers it likely that, during a routine
screening of rejected Tamil asylum seekers by the Sri Lankan authorities,
the complainant's arrest and detention in the military camp would come to
light together with the information that he worked as a karate teacher in
Jaffna. Moreover, the scars on his body would raise the suspicion that he
had been involved in the armed combat of LTTE. Counsel concludes that the
combination of these facts would expose the complainant to a high personal
risk of being subjected to torture going beyond a "mere possibility".
Issues and Proceedings Before the Committee
6.1 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. In this respect 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 also
notes that the State party has not contested the admissibility of the
communication. As the Committee sees no further obstacles to admissibility,
it declares the communication admissible and proceeds immediately to the
consideration of the merits.
6.2 The Committee must decide whether the forced return of the complainant
to Sri Lanka would violate the State party's obligation, under article 3,
paragraph 1, of the Convention, not to expel or return (refouler) an
individual to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture. In order
to reach its conclusion, the Committee must take into account all relevant
considerations, including the existence, in the State concerned, of a
consistent pattern of gross, flagrant or mass violations of human rights.
The aim, however, is to determine whether the individual concerned would
personally risk 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
sufficient grounds for determining whether the 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. Conversely, 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.
6.3 With respect to the general human rights situation in Sri Lanka, the
Committee recalls that, in its concluding observations on the initial report
of Sri Lanka, it expressed grave concern about "information on serious
violations of the Convention, particularly regarding torture linked with
disappearances". [FN7] The Committee also notes from recent reports on the
human rights situation in Sri Lanka [FN8] that, although efforts have been
made to eradicate torture, instances of torture continue to be reported, and
that complaints of torture are often not dealt with effectively by police,
magistrates and doctors. However, the Committee equally notes the ongoing
peace process in Sri Lanka which led to the conclusion of the cease-fire
agreement between the Government and the LTTE of February 2002, and the
-albeit currently interrupted - negotiations between the parties to the
conflict which have taken place since. The Committee further recalls that,
on the basis of the proceedings concerning its inquiry on Sri Lanka under
article 20 of the Convention, it concluded that the practice of torture is
not systematic in the State party. [FN9] The Committee finally notes that a
large number of Tamil refugees returned to Sri Lanka in 2001 and 2002.
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[FN7] Committee Against Torture, 20th Sess., Concluding observations of the
Committee Against Torture: Sri Lanka, 19 May 1998, UN Doc. A/53/44, paras.
243-257, at para. 249.
[FN8] See Amnesty International Report 2002, Sri Lanka, AI index: POL
10/001/2002; Amnesty International, Sri Lanka: Torture prevails despite
reforms, AI index: ASA 37/14/1999.
[FN9] Report A/57/44, Chapter IV.B, at para. 181.
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6.4 With regard to the complainant's claim that he would be in danger of
being subjected to torture by the LTTE for having left the LTTE-controlled
area of Sri Lanka without an express permission to do so and without
designating someone to vouch for him, the Committee recalls 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". The Committee
observes that the issue whether the State party has an obligation to refrain
from expelling a person who might risk pain or suffering inflicted by a
non-governmental entity, without the consent or acquiescence of the
Government, falls outside the scope of article 3 of the Convention, unless
the non-governmental entity occupies and exercises quasi-governmental
authority over the territory to which the complainant would be returned.
[FN10] Since the complainant can be returned to territory other than that
under the control of LTTE , the issue, on which he bases part of his claim,
that he would suffer retribution from the LTTE upon his return to Sri Lanka
cannot be considered by the Committee.
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[FN10] See Committee Against Torture, 22nd Sess., Sadi Shek Elmi v.
Australia, Communication No. 120/1998, Views adopted on 14 May 1999, UN Doc.
CAT/C/22/D/120/1998, para. 6.5. Cf. also Committee Against Torture, 28th
Sess., M.P.S. v. Australia, Communication No. 138/1999, Views adopted on 30
April 2002, UN Doc. CAT/C/28/D/138/1999, para. 7.4; Committee Against
Torture, 26th Sess., S.V. et al. v. Canada, Communication No. 49/1996, Views
adopted on 15 May 2001, UN Doc. CAT/C/26/D/49/1996 , para. 9.5.
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6.5 With respect to the risk that the complainant might be subjected to
torture at the hands of State agents upon return to Sri Lanka, the Committee
has noted the complainant's claim that he is at high personal risk owing to
his previous activities as a karate teacher, that he has allegedly already
been severely maltreated by soldiers of the Sri Lankan army, and that he
bears scars which the authorities would likely assume to have been caused by
fighting for the LTTE. It has considered the claim that, because of the
failure by the Dutch Immigration and Naturalization Department (IND) to take
a decision on the complainant's refugee application within the prescribed
time limit, the complainant was precluded from filing an objection regarding
the merits of the IND's final decision, dated 20 May 1999. The Committee has
further noted that the IND took this decision before the Bureau for Medical
Advice (BMA) gave its advice on the complainant's medical condition.
Similarly, the Committee has noted the attention drawn by the State party to
a number of inconsistencies and contradictions in the complainant's account,
which are said to cast doubt on the complainant's credibility and the
veracity of his allegations.
6.6 The Committee notes that the medical evidence submitted by the
complainant confirms physical as well as psychological symptoms, which might
be attributed to his alleged maltreatment at the hand of the Sri Lankan
army. However, the Committee observes that, even if the complainant's
allegation that he was severely tortured during his detention at the
Trincomalee military camp in 1996 were sufficiently substantiated, these
alleged acts of torture did not occur in the recent past.
6.7 In the Committee's view, the complainant has not demonstrated any other
circumstances, other than the fact that he worked as karate teacher in
Jaffna until 1996 and the presence of scars on his body, which would appear
to make him particularly vulnerable to the risk of torture if he were to be
returned to Sri Lanka. Moreover, the Committee again notes that the positive
development of the peace negotiations between the Sri Lankan government and
the LTTE and the implementation of the peace process underway give reason to
believe that a person in the situation of the complainant would not be under
such risk upon return to Sri Lanka. The Committee therefore finds that the
complainant has not provided sufficient evidence for substantiating that the
he would be in danger of being subjected to torture, were he to be returned
to Sri Lanka, and that such danger is present and personal.
7. 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 complainant's removal to Sri
Lanka by the State party would not constitute a breach of article 3 of the
Convention.
[Adopted in English, French, Russia 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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