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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 24 November 2005,
Having concluded its consideration of complaint No. 231/2003, submitted to
the Committee against Torture by Mr. S. N. A. W. et al. 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,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainants are Mr. S. N. A. W. (first complainant), born on 6
February 1974, his sister P. D. A. W. (second complainant), born on 2 March
1964, and her daughter S. K. D. D. G. S. (third complainant), born on 30
December 1992. They are Sri Lankan nationals, currently residing in
Switzerland and awaiting deportation to Sri Lanka. They claim that their
forcible return 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, since they would be at risk of being
subjected to torture in Sri Lanka. The complainants are represented by
counsel, Mr. Bernhard Jüsi.
1.2 On 20 June 2003, the Committee, through its Rapporteur on New Complaints
and Interim Measures, transmitted the complaint to the State party and
requested it, under Rule 108, paragraph 1, of its rules of procedure, not to
return the complainants to Sri Lanka while their 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 by note of 12 August 2003.
The Facts as Submitted by the Complainants:
2.1 In 1992, the first and second complainants' brother, a suspected JVP ("Janatha
Vimukthi Peramuna") activist, was shot dead while taking a shower in the
backyard of his house in Jayawadanagama, Battaramulla (Sri Lanka).
Allegedly, the police refused to investigate the assassination. The police
officer in charge of the case told the complainants that the bullets found
in their brother's body belonged to a police gun. He was subsequently
reassigned to another post. When the complainants insisted on a proper
investigation, they were warned that it would be better for their own safety
not to ask more questions. In 1993, the complainants' family moved to
another town (Akkuressa), because of the pressure exercised on them by the
authorities.
2.2 During the winter of 1994/1995, the second complainant's husband was
arrested at the house of the complainants' family, after failing to return
to service in the Sri Lankan Army at the end of his leave. The police denied
that he had been detained and accused the complainants of hiding him.
Unaware of her husband's whereabouts, the second complainant was
subsequently harassed and allegedly almost raped by members of the security
forces, which forced her to go into hiding.
2.3 The first complainant was arrested on 27 June 1995, without being
informed of the charges against him, and detained at the Colombo Fort police
post, from where he was transferred to Mahara prisons after one week. During
his detention at Colombo Fort, he was interrogated several times about his
brother-in-law and his deceased brother. He was allegedly subjected to
torture every day, receiving blows with a stick on his feet, testicles and
stomach.
2.4 Subsequently, charges of attempted armed robbery were brought against
the first complainant, on the basis that he and two accomplices had attacked
a man while the latter was exchanging money. He remained in detention until
his release on 22 December 1995, on the condition that he would report to
the police every other week. Due to his fear to be detained again he decided
to leave the country together with the other complainants on 20 March 1997.
On 8 April 1997, they arrived in Switzerland and applied for asylum.
2.5 On 12 November 1998, the Federal Office for Refugees (BFF) informed the
second complainant that her husband had applied for asylum in Switzerland.
The marriage between the second complainant and her husband was dissolved by
divorce judgment of 5 October 1999.
2.6 On 8 December 1998, the BFF rejected the first complainant's asylum
application, considering that the evidence for his release from prison, i.e.
a bail receipt dated 21 December 1995, was forged, thus undermining the
credibility of his claims, in the absence of any other evidence such as an
indictment, a judgment or a decision to discontinue criminal proceedings
against him. In a separate decision, the BFF also rejected the second and
third complainants' asylum claim, based on a) inconsistencies between the
statements of the second complainant and her husband about the date of the
latter's desertion from the army and about the time when both spouses lost
contact; b) the fact that desertions from the Sri Lankan army were unlikely
to lead to persecution of family members; and c) the fact that the second
complainant left Sri Lanka before her husband, although he was at the center
of the authorities' attention. The BFF did not consider that the
complainants' brother's death in 1992 would still give rise to any
persecution of the surviving family members. It ordered the complainants'
removal from Switzerland, arguing that their Sinhalese ethnicity and the
existence of an internal flight alternative in Sri Lanka minimized any risk
of ill-treatment on return.
2.7 On 28 August 2000, the Asylum Appeals Board (ARK) dismissed the first
complainant's appeal against the decision of the BFF. It rejected new
evidence submitted by the first complainant (copy and translation of a
document issued by Mahara prisons, confirming that he had been detained from
4 July to 22 December 1995; summons for a High Court hearing on 22 October
1998; and two warrants dated 9 December 1998 and 1 July 1999 with
translations), arguing that, in the absence of the original, the copy of the
confirmation from Mahara prisons only had very limited evidentiary value,
that it was unusual for such a document to be signed by a prison warden,
that the file reference on the summons and on the warrant dated 9 December
bears no apparent link to the reference number of the proceedings, and that
his address on both warrants referred to the town where he had lived prior
to 1993, although the authorities must have known that he had moved to
Akkuressa, where he was arrested in June 1995. The ARK considered that
several inconsistencies undermined the credibility of the first
complainant's claims: a) the contradiction between his initial statement
before the immigration authorities that his mother had provided his bail and
his statement during ARK proceedings that he would submit copies of recent
summons of his two bailors; b) the fact that there was no need for the Sri
Lankan authorities to arrest him under the pretext of a common criminal
offense, if they suspected him of hiding his brother-in-law, given that
sheltering a deserter would have been a sufficient basis for arrest under
Sri Lankan law; and c) the fact that he did not leave Sri Lanka before March
1997, although he claims that since January 1996, he had feared to be
re-arrested.
2.8 On 28 August 2000, the ARK also dismissed the second and third
complainants' appeal, based on the same inconsistencies as the ones which
had been identified by the BFF.
2.9 On 19 December 2002, the ARK dismissed the first complaint's
extraordinary appeal. It rejected a certified copy dated 10 July 2000 of his
indictment and the trial transcript of the High Court of Colombo as out of
time, finding that this evidence should have been introduced during the
appeal proceedings, given that the first complainant had sufficient time to
obtain the document from his lawyer in Colombo. The new evidence would, in
any event, not give rise to a non-refoulement claim, in the absence of a
credible claim that the first complainant's indictment for robbery was
intended to punish him for his brother-in-law's army desertion. Only in
exceptional cases involving much more serious offenses than desertion were
family members held responsible for acts of their relatives in Sri Lanka.
For analogous reasons, the ARK dismissed the second and third complainants'
extraordinary appeal.
The Complaint:
3.1 The complainants claim that the combined effect of their deceased
brother's JVP membership; their efforts to initiate a proper investigation
of his death; the torture experienced by, and the criminal proceedings
pending against, the first complainant; the disappearance for several years
of the second complainant's husband; as well as their long stay in
Switzerland, where Sri Lankan opposition groups are traditionally active,
would culminate in their exposure to a high risk of being subjected to
torture upon return to Sri Lanka, in violation of article 3 of the
Convention.
3.2 They submit that the first complainant's risk of being arrested is
increased by the fact that he continues to face criminal proceedings in Sri
Lanka, whereas the second complainant would run a high risk of sexual
harassment and rape during police interrogation in Sri Lanka.
3.3 By reference to annual reports of Amnesty International, the U.S.
Department of State and a report of the Commission on Human Rights, the
complainants submit that torture and cruel, inhuman or degrading treatment
are common occurrences in Sri Lanka.
State Party's Observations on Admissibility and Merits:
4.1 On 12 August 2003, the State party conceded the admissibility of the
complaint. On 15 December 2003, it disputed that the complainants' removal
would violate article 3 of the Convention, fully endorsing the findings of
the BFF and the ARK and arguing that the complainants did not submit any new
arguments to challenge the decisions of the BFF and the ARK. They failed to
clarify the contradictions which undermined their credibility, to submit any
medical evidence that would corroborate the alleged torture of the first
complainant or its claimed after-effects, or to substantiate their
participation in any political activities during their time in Switzerland.
4.2 Neither their deceased brother's membership in the JVP, which had been
legalized as a political party, nor the second complainant's husband's
desertion from the army, an offense that is no longer prosecuted since March
2003, would be tantamount to expose the complainants to a risk of
persecution today. Besides, the complainants would not have been able to
leave Sri Lanka by plane, had any of them been sought by the police, given
the strict security measures at Colombo airport.
4.3 By reference to the Committee's jurisprudence, the State party submits
that even if the first complainant faced criminal charges in Sri Lanka, the
mere fact that he would be arrested and tried upon return would not
constitute substantial grounds for believing that he would be at risk of
being subjected to torture.
4.4 Lastly, the State party refers to the report [FN1] on the Committee's
inquiry on Sri Lanka under article 20 of the Convention, finding that the
practice of torture was not systematic in Sri Lanka. It concludes that the
complainants cannot substantiate a real, present and personal risk of being
subjected to torture upon return to Sri Lanka.
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[FN1] UN Doc. A/57/44, at para. 181.
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Complainant's Comments:
5.1 On 16 January 2004, the complainants commented on the State party's
observations, criticizing the rejection for late submission by the ARK of
the first complainant's trial transcripts, despite their relevance for his
risk of torture. While conceding that neither the desertion from the army of
the second author's husband, nor the extrajudicial execution of the first
and second complainant's brother were, as of themselves, sufficient to
constitute a foreseeable, real and personal risk of torture for the
complainants, the opposite was true of the combined effect of these and
other elements, even if it were to be assumed that torture was not
systematic in Sri Lanka.
5.2 The complainants submit that, despite the strong after effects of the
first complainant's torture, he never consulted a medical doctor, but rather
tried to suppress his traumatic experience. As regards their departure from
Sri Lanka, they content that it was possible to leave the country with a
forged passport.
5.3 The complainants request the Committee to proceed with an independent
assessment of the authenticity of the documentary evidence and to grant the
first complainant a personal hearing to witness his emotional distress when
talking about his torture experiences.
Issues and Proceedings Before the Committee:
6. 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 (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 the present case, the
Committee also notes that all domestic remedies have been exhausted and that
the State party has conceded that the communication is admissible. It
therefore considers that the communication is admissible and proceeds to an
examination on the merits of the case.
7.1 The Committee must decide whether the forced return of the complainants
to Sri Lanka would violate the State party's obligation, under article 3,
paragraph 1, of the Convention, not to expel or return (refouler)
individuals to another State where there are substantial grounds for
believing that they would be in danger of being subjected to torture. In
reaching 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
(article 3, paragraph 2, of the Convention).
7.2 The Committee has noted recent reports on the human rights situation in
Sri Lanka to the effect that, although efforts have been made to eradicate
torture, instances of torture in police custody continue to be reported and
complaints of torture are frequently not investigated effectively. [FN2]
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[FN2] See Amnesty International, Annual Report 2004: Sri Lanka; Human Rights
Watch, World Report 2005: Sri Lanka; U.S. Department of State, Country
Reports on Human Rights Practices, Sri Lanka, 28 February 2005.
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7.3 The Committee reiterates that the aim of its examination is to determine
whether complainants would personally risk torture in the country to which
they would return. It follows that, irrespective of whether a consistent
pattern of gross, flagrant or mass violations of human rights can be said to
exist in Sri Lanka, such existence would not as such constitute sufficient
grounds for determining that the complainants would be in danger of being
subjected to torture upon return to Sri Lanka. Additional grounds must be
adduced to show that they would be personally at risk. Conversely, the
absence of a consistent pattern of gross violations of human rights does not
necessarily mean that the complainants cannot be considered to be in danger
of being subjected to torture in the specific circumstances of their case.
7.4 As regards the complainants' personal risk of being subjected to torture
at the hands of the Sri Lankan police, the Committee notes their claim that
the combined effect their deceased brother's JVP membership, their efforts
to see his death investigated properly, the first complainant's past torture
and the criminal proceedings pending against him, as well as the desertion
from the army of the second complainant's husband and its consequences,
would be tantamount to expose them to a high risk of torture upon return to
Sri Lanka. It also takes note of the State party's challenge to the
complainants' credibility, to the authenticity and relevance of the evidence
submitted by them, and to their assessment of their personal risk and of the
general human rights situation in Sri Lanka.
7.5 Insofar as the first complainant alleges that he was tortured in 1995,
the Committee has noted the total absence of any medical evidence which
would corroborate this claim. It observes that the burden would have been
upon the complainants to present pertinent evidence to that effect. [FN3]
Even assuming that the first complainant was tortured during his detention
at Colombo Fort police station, the alleged instances of torture occurred in
1995 and, thus, not in the recent past. [FN4] Similarly, the political
activities and the execution of the first and second complainant's brother
cannot be considered relevant in relation to their non-refoulement claim, as
they date back to 1992.
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[FN3] See General Comment No. 1: Implementation of article 3 of the
Convention in the context of article 22, 21 November 1997, at para. 5.
[FN4] See ibid., at para. 8 (b).
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7.6 The Committee has finally taken note of the copies and translations of
the documentary evidence submitted by the complainants, including a bail
receipt dated 21 December 1995 for the amount of 10,000 Rupees; a written
statement dated 14 July 1998 signed by a warden of Mahara prisons,
confirming that the first complainant was detained between 4 July and 22
December 1995; an arrest warrant dated 9 December 1998 against the first
complainant for failure to appear in court; his indictment for attempted
robbery on 27 June 1995 and the pertinent trial transcript of the Colombo
High Court with translations dated 18 August 2000. But even if these
documents were to be considered authentic, they merely prove that the first
complainant was detained and released on bail and that, subsequently, he
might have been indicted and tried in absentia for attempted robbery. In
this regard, the Committee recalls that the mere fact that the first
complainant would be arrested, retried and possibly convicted in Sri Lanka
would not as of itself constitute torture within the meaning of article 1,
paragraph 1, of the Convention; nor would it constitute substantial grounds
for believing that any of the complainants would be in danger of being
subjected to torture in the event of their return to Sri Lanka. [FN5]
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[FN5] See Communication No. 57/1996, P.Q.L. v. Canada, Views adopted on 17
November 1997, at para. 10.5.
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7.7 With regard to the desertion from the Sri Lankan army in 1994/95 of the
second complainant's ex-husband, the Committee does not consider that any of
the complainants would have to fear persecution on the basis of family
co-responsibility, as the second complainant's marriage was dissolved by
divorce judgment of 5 October 1999.
7.8 In the light of the above, the Committee need not consider the first
complainant's request, under Rule 111, paragraph 4, of the Committee's rules
of procedure, for a personal hearing.
7.9 The Committee therefore concludes that the complainants have not adduced
sufficient grounds for believing that they would run a substantial, personal
and present risk of being subjected to torture upon return to Sri Lanka.
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 complainants' 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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