against Torture, established under Article 17 of the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
Meeting on 24 November 2005,
Having concluded its consideration of complaint No. 242/2003, submitted to
the Committee against Torture by Mr. R. T. under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
Having taken into account all information made available to it by the
Having taken into account all information made available to it by the
Adopts the following decision under article 22 of the Convention.
1.1 The complainant is Mr. R. T., a Sri Lankan national of Tamil origin,
currently residing in Switzerland pending his return to Sri Lanka. He does
not invoke any specific provision of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, but his complaint
appears to raise issues under article 3 of the Convention. He is represented
by counsel, Ms. Brigitt Thambiah.
1.2 On 12 December 2003, the Committee, through its Rapporteur on new
complaints and interim measures, transmitted the complaint to the State
party and requested, under Rule 108, paragraph 1, of its rules of procedure,
not to return the complainant to Sri Lanka while his case was under
consideration by the Committee. The Rapporteur indicated that this request
could be reviewed in the light of new arguments presented by the State
party. The State party acceded to this request.
1.3 On 12 February 2004, the State party challenged the admissibility of the
communication and requested the Committee to withdraw its request for
interim measures, pursuant to Rule 108, paragraph 7, of the Committee's
rules of procedure. On 2 April 2004, the complainant objected to the State
party's motion for withdrawal of interim measures. On 30 June 2004, the
Secretariat informed the State party that the admissibility of the
communication would be examined separately from its merits.
The Facts as Submitted by the Complainant:
2.1 The complainant claims that he joined the LTTE (Liberation Tigers of
Tamil Eelam) in 1992 and participated in armed combat. On 1 April 1994, the
LTTE sent him to Colombo without giving reasons. On 20 October 1995, the
police arrested him during an identity control in connection with an LTTE
attempt, but released him after three days upon payment of a bribe by the
2.2 On 12 May 1996, the complainant entered Germany where he unsuccessfully
applied for asylum. On return to Sri Lanka on 21 November 1997, he was
arrested by the Criminal Investigation Department (CID), but was released
after paying a bribe. On 3 February 1998, the complainant was arrested as
LTTE suspect by the CID under the Prevention of Terrorism Act. He was
detained for 25 days without access to a judge. He was allegedly ill-treated
during detention. Following his release, he was required to report to the
police on every Sunday for three months. On 11 June 1998, he was again
arrested on the suspicion of LTTE membership and was allegedly ill-treated
during detention. After 20 days, the Magistrate's Court in Colombo acquitted
him and ordered his unconditional release.
2.3 The complainant then went to Singapore. On 25 January 2000, he was
returned and arrested by the CID on arrival at the airport. On 30 January,
he was released on bail and later acquitted by the Magistrate's Court in
Negombo. On 18 June 2000, the CID again arrested him for presumed LTTE
contacts, allegedly detained and ill-treated him, until he was acquitted and
released by the Magistrate's Court in Colombo on 10 July 2000.
2.4 On 23 August 2000, the complainant made another unsuccessful asylum
application at Frankfurt Airport in Germany. Upon return to Sri Lanka on 16
October 2000, he was detained until the Magistrate's Court in Negombo
ordered his release on bail. Subsequently, the police allegedly threatened
his life on two occasions.
2.5 On 23 February 2001, the complainant applied for asylum at the Swiss
Embassy in Colombo. On 27 February 2001, he was invited for an interview on
16 March 2001, which he did not attend. His application was therefore
rejected on 11 May 2001.
2.6 Meanwhile, the complainant traveled to China. On 25 October 2001, he was
returned to Sri Lanka, after trying to leave Hong Kong for the United States
on a false passport. On arrival, he was asked about the reasons for his
deportation and was released after paying a bribe. Between 4 and 9 November
2001, he was allegedly detained and again maltreated by the CID.
2.7 On 16 November 2001, the complainant filed a second asylum application
with the Swiss Embassy in Colombo and justified his failure to attend the
interview on 16 March 2001 as follows: The night before the interview,
security forces had been searching for him, thereby forcing him to go into
hiding. He had then left Sri Lanka for Hong Kong, where immigration
authorities detained him for five months because of the expiry of his visa.
In October 2001, he was returned to Sri Lanka.
2.8 On 19 November 2001, the complainant was interviewed at the Swiss
Embassy in Colombo. He stated that he had left Sri Lanka in 1996 without the
LTTE's knowledge and had not had contact with Organization since then. On 29
September 2000, he had been detained for six days and subjected to
ill-treatment by the CID.
2.9 On 6 March 2002, the Swiss Federal Office for Refugees (BFF) authorized
the complainant's travel to Switzerland in order to pursue his asylum
proceedings. He arrived in Switzerland on 20 April 2002. During an interview
with the BFF on 22 May 2002, he referred to a letter dated 10 February 2001
from the LTTE, stating that the Organization would "forgive" him one last
time, as well as to a letter dated 17 January 2002 from the People's
Liberation Organization of Tamil Eelam (PLOTE), threatening to arrest him
without handing him over to the authorities.
2.10 On 25 September 2002, the BFF rejected the complainant's second asylum
application and ordered his expulsion. It challenged the credibility of his
account and the authenticity of the letters allegedly sent by the LTTE and
the PLOTE. His alleged arrests in 1995, 1998 and 2000 had no sufficient link
in time to establish a present risk of persecution or ill-treatment. Even if
his return to the North-East of Sri Lanka was too dangerous, the complainant
had an internal flight alternative in the Southern parts of Sri Lanka.
2.11 On 28 October 2002, the BFF revoked its decision and held another
interview with the complainant on 19 December 2002, during which he stated
that he had not had any contact with the LTTE since his departure from
Jaffna in 1994, and that the Organization had been looking for him since
1995. In February 2003, the BFF invited the complainant's lawyer to comment
on the information received from the German immigration authorities, and
granted him access to the files of the German asylum proceedings. The lawyer
did not comment.
2.12 On 15 May 2003, the BFF rejected the complainant's second asylum
application (dated 26 October 2001) and ordered his expulsion, on the
following grounds: (a) the absence of any evidence that the complainant was
ever detained, indicted or convicted for LTTE membership; (b) the fact that
he was acquitted and released after relatively short detention periods; (c)
the inconsistencies in his description of the dates and the periods of
detention in his applications and in his statements at the Swiss Embassy in
Colombo and before the BFF; (d) the context of his arrests, i.e. the Sri
Lankan authorities' need to investigate terrorist acts and to check the
complainant's status after his forcible return from three different
countries; and (e) the improvement of the general human rights situation in
Sri Lanka after the conclusion of an armistice on 22 February 2002.
2.13 On 14 October 2003, the Swiss Asylum Review Board (ARK) dismissed the
complainant's appeal on the following additional grounds: (a) further
inconsistencies in his account, e.g. the contradiction between his statement
before the BFF on 19 December 2002 that he had not had any contact with the
LTTE since 1994, and his statement at the Swiss Embassy in Colombo that he
left the LTTE in 1996, as well as his claim that the LTTE had paid a bribe
to free him from detention in October 1995; or (b) the contradiction between
his alleged six-day detention from 29 September 2000 and information from
the German border police in Weil am Rhein, according to which he had been in
Germany between 23 August and 16 October 2000; (c) the fact that the
documents submitted by the complainant merely reflected that he was arrested
and released on several occasions, without establishing any link with the
LTTE; (d) the lack of authenticity of two letters from a Sri Lankan lawyer,
confirming that the complainant had been arrested as an LTTE suspect several
times; (e) the absence of a risk of treatment contrary to article 3 of the
Convention; and (f) the applicability of the Swiss-Sri Lankan repatriation
agreement of 1994, under which the complainant would be in possession of
valid documents upon return to Sri Lanka, thus excluding a risk of detention
related to identity controls.
2.14 On 20 October 2003, the BFF ordered the complainant to leave
Switzerland by 15 December 2003. On 9 December 2003, the Directorate for
Labour and Migration of the Canton of Uri convoked the complainant for 16
December 2003 to discuss the modalities of his travel under the voluntary
repatriation programme ("swissREPAT") chosen by him.
3.1 The complainant claims that he cannot return to Sri Lanka, from where he
fled during the civil war. He fears that he will be arrested upon return to
Sri Lanka and requests the Committee to assist him to obtain asylum in
Switzerland or a third country.
3.2 From the documents submitted by the complainant, it transpires that he
does not only fear persecution and torture at the hand of the Sri Lankan
authorities, but also by the LTTE and the PLOTE.
3.3 As part of the file of his asylum proceedings in Switzerland, the
complainant submitted, inter alia, the following documents: (a) a family
notification by the ICRC dated 23 July 1996, in Sinhalese; (b) an ICRC card
carrying the complainant's name as well as an ICRC number; (c) a letter
dated 26 February 1997 from a Colombo-based lawyer, stating that the
complainant had been arrested by the army on 13 July 1996 and detained until
26 February 1997; (d) two letters dated 2 September 2000 and 26 December
2002 from another lawyer, confirming arrests of the complainant in 1995,
1998 and 2000, drawing attention to the unsettled political situation in Sri
Lanka, and stating that on return, he would be charged under the Immigrants
and Emigrants (Amendment) Act No. 42 of 1998, [FN1] providing for sentences
between one and five years imprisonment, as well as under the Prevention of
Terrorism Act, which provides for much longer sentences and involves a risk
of being subjected to duress to extract a confession; and (e) a letter dated
28 August 2003 from the manager of the lodge in Colombo where the
complainant used to live, warning him that on 7 and 10 August 2003, the CID
had come to the lodge to look for him.
[FN1] Read together with Act No. 16 of 1993
State Party's Observations on Admissibility:
4.1 On 12 February 2004, the State party disputed that the complainant's
submission meets the minimum requirements of a complaint within the meaning
of Rule 107 (a) of the Committee's rules of procedure and, subsidiarily,
challenged its admissibility for lack of substantiation of a violation of
4.2 The State party submits that Rule 107 (a) requires "that the individual
claims to be a victim of a violation by the State party of the provision of
the Convention." Rather than substantiating a violation of the Convention,
the complainant merely informed UNHCR on an unspecified date about the
rejection of his asylum application by the BFF, the possibility to appeal
this decision within 30 days, and requested an appointment to "discuss [his]
problem before writing an appeal." In the absence of any claim of a
violation, the State party considers it impossible to comment on the
4.3 The State party submits that, albeit still in force, the provisions
pertaining to the return of LTTE suspects adopted under the February 2002
armistice are inapplicable to the complainant, who was never suspected of
belonging to the LTTE. It reserves the right to submit its merits
observations, should the Committee declare the communication admissible.
5.1 On 2 April 2004, the complainant clarified that, rather than his request
for consultation with UNHCR concerning the modalities of an appeal to the
ARK, his letter of 11 December 2003 formed the basis of his complaint to the
Committee. In this letter, which was signed and dated, he expressed his fear
to be arrested upon return to Sri Lanka, after his appeal had been dismissed
by the ARK on 14 October 2003. It was obvious from his previous experience
that, in addition to arrest, he also feared ill-treatment, to which young
Tamils were still subjected in Sri Lankan prisons. The documents appended to
his complaint reflected that he had been detained several times in Sri
Lanka. Moreover, during the Swiss asylum proceedings, he had already raised
his claim that he had been maltreated by the CID during detention.
5.2 The complainant argues that the formal requirements for submitting a
complaint should not be overly strict for a layman and concludes that his
complaint meets the admissibility criteria under the Convention.
Issues and Proceedings Before the Committee:
6.1 Before considering any claim contained in a communication, the Committee
against Torture must decide whether or not it is admissible under article 22
of the Convention. The Committee has ascertained, as it is required to do
under article 22, paragraph 5, of the Convention, that the same matter has
not been, and is not being, examined under another procedure of
international investigation or settlement, and that the complainant has
exhausted all available domestic remedies.
6.2 The Committee recalls that for a claim to be admissible under article 22
of the Convention and Rule 107 (b) of its rules of procedure, it must rise
to the basic level of substantiation required for purposes of admissibility.
It notes that the complainant has provided documentary evidence for his
arrest on 3 February 1998 and for his release on 10 July 2000 (following his
arrest on 18 June 2000) by the Magistrate's Court in Colombo. However,
beyond the mere claim that he was subjected to ill-treatment during
detention, he has failed to provide any detailed account of these incidents
or any medical evidence which would corroborate his claim or possible
after-effects of such ill-treatment. Even assuming that the author was
ill-treated during detention periods in 1998 and 2000, this did not occur in
the recent past.
6.3 The Committee notes that the complainant has not submitted any
corroborating evidence in support of his alleged detention and ill-treatment
in September and October 2000 or in November 2001.
6.4 Lastly, the Committee notes that the BFF gave the complainant ample
opportunity to substantiate his claims, authorizing his travel to
Switzerland to pursue his asylum proceedings and interviewing him several
times. The BFF did not hesitate to revoke its decision of 25 September 2002
to reassess his asylum application. The Committee observes that the
complainant has not provided fresh evidence which would cast doubts on the
findings of, or the factual evaluation made by, the BFF and the ARK.
7. The Committee therefore considers that the complainant's claims fail to
rise to the basic level of substantiation required for purposes of
admissibility, and concludes, in accordance with article 22 of the
Convention and Rule 107 (b) of its rules of procedure, that the
communication is manifestly unfounded and thus inadmissible.
8. Accordingly, the Committee decides:
a) that the communication is inadmissible;
b) that this decision shall be communicated to the State party and to the
[Done in English, French, Spanish and Russian, 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.]