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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 11 May 2001,
Having concluded its consideration of communication No. 142/1999, submitted
to the Committee against Torture 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 communication, his counsel and the State party,
Adopts its Views under article 22, paragraph 7, of the Convention.
1.1 The authors of the communication are Mr. S.S., a Sri Lankan national
born on 1 April 1963, his wife Mrs. S.A., a Sri Lankan national born on 28
August 1972, and their daughter, B.S., born on 12 October 1997 in the
Netherlands. The authors, all currently residing in the Netherlands, allege
that their proposed expulsion to Sri Lanka would violate article 3 of the
Convention. The authors are represented by counsel.
1.2 In accordance with article 22, paragraph 3, of the Convention, the
Committee transmitted the communication to the State party on 18 August
1999. At the same time, the State party was requested, pursuant to rule 108,
paragraph 9, of the Committee's rules of procedure, not to expel the authors
to Sri Lanka while their communication was under consideration by the
Committee. In a submission dated 28 October 1999, the State party informed
the Committee that authors would not be returned to Sri Lanka while their
case was under consideration by the Committee.
The Facts as Submitted by the Authors
2.1 As to Mr. S.S., a member of the Tamil ethnic group, it is stated that he
was held in detention by the Tamil Tiger organization LTTE from 10 January
1995 until 30 September 1995 for having publicly criticized the organization
and its leader, and refusing to take part in its activities. During the
period of detention, he performed tasks such as woodcutting, filling
sandbags, digging bunkers and cooking. Before he was detained by LTTE, his
father had been detained in his place and he had died in detention of a
heart attack. On 30 September 1995, Mr. S.S. escaped from the LTTE barracks
and travelled to Colombo.
2.2 On 3 October 1995, he was arrested by police, during a routine check,
for inability to show an identity card. He was questioned as to personal
details and whether he was involved with LTTE, which he denied. He claims
not to have been believed and to have been accused of spying for LTTE and
travelling to Colombo to plan an attack. The next day he was released upon
the intervention of an uncle and payment of a sum of money, subject to an
obligation to report daily to police while staying in Colombo. The author
states that he heard that the authorities intended to transfer him to Boosa
prison, from which allegedly detainees never emerge alive. On 8 October
1995, Mr. S.S. left the country by air for the Netherlands.
2.3 On 18 December 1995, Mr. S.S.'s request for asylum of 19 October 1995
was denied. An appeal made to the Secretary of Justice on 23 January 1996
was rejected on 16 September 1996. The Secretary's decision was appealed on
30 October 1996, but before the case was brought for hearing Mr. S.S. was
informed that the decision of 16 September 1996 was withdrawn. A new
decision would be taken after his case had been heard by an independent
Advisory Commission on Aliens Affairs (Adviescommissie voor
vreemdelingzaken).
2.4 As to Mrs. S.A., also a member of the Tamil ethnic group, it is
contended that in mid-November 1995 she was also detained by LTTE in an
attempt to determine her husband's whereabouts and activities. While in the
LTTE camp, she was forced to perform duties such as cooking and cleaning.
After being taken to hospital at the end of March 1996, she escaped on 3
April 1996.
2.5 On 17 June 1996, she was arrested by the Eelam People's Revolutionary
Liberation Front (EPRLF). She states that she was accused by a third party
of collaboration with LTTE and was repeatedly questioned in this regard by
EPRLF, but explained that she had performed forced labour for LTTE and why.
She states she was not ill-treated but occasionally struck. She was handed
over to the Sri Lankan authorities, held in custody and made to identify
various alleged LTTE members at roadblocks. In mid-August 1996, she was able
to escape after a convoy in which she was travelling struck a mine. She
travelled to Colombo in late August and left the country by air for the
Netherlands on 12 September 1996. It is alleged, without any details being
provided, that because of her escape her uncle was killed by the
authorities.
2.6 On 18 November 1996, Mrs. S.A.'s request for asylum of 16 October 1996
was denied. An appeal made to the Secretary of Justice on 31 December 1996
was rejected on 20 March 1997. The following day Mrs. S.A. was informed that
the decision was withdrawn and that a new decision would be taken after
hearing before the Advisory Commission.
2.7 Mr. S.S. and Mrs. S.A. were both heard before the three-person Advisory
Commission on 2 February 1998 which, in an extensive and fully reasoned
judgement, unanimously recommended that the Secretary of Justice reject the
authors' appeal against the original denial of asylum. [FN1] On 30 June
1998, the Secretary of Justice ruled that the authors were not eligible for
refugee status and that they were in no real danger of being subjected to
inhuman treatment. On 23 July 1998, the authors appealed this decision to
The Hague District Court, which found the appeals unfounded on 25 January
1999.
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[FN1] UNHCR did not take up an invitation from the Advisory Commission to
make representations on behalf of the authors in this case.
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The Complaint
3. The authors contend that there are substantial grounds to believe that,
if returned, they will be subjected to torture. They state that, as Tamils
from the northern Tamil town of Jaffna, their presence in Colombo will give
rise to suspicions on the part of the authorities of connections to LTTE.
Having been suspected of such connections already, there is said to be
nowhere safe in Sri Lanka where they could go. They contend that the
authorities profoundly believe them to be opponents of the regime. Citing
unspecified reports on the general situation in Sri Lanka by Amnesty
International, UNHCR and other sources, the authors claim a real risk of
being detained and tortured in the event of their return. Accordingly, their
forced return is claimed to violate article 3 of the Convention.
Observations of the State Party
4.1 As to the admissibility of the communication, by letter of 28 October
1999, the State party accepts that there are no further avenues of appeal
available against the decision of the District Court and that accordingly it
is not aware of any objections to the admissibility of the communication.
4.2 As to the merits, by letter of 18 February 2000, the State party argues
that, taking into account the observations made by the authors during their
asylum procedure viewed in the light of the general situation in Sri Lanka,
there is no reason to assume that substantial grounds exist for believing
that the authors would run a real and personal risk of being subjected to
torture if returned. Accordingly it considers the communication ill-founded.
4.3 The State party notes at the outset that under its law, due to a high
population density and consequent problems, aliens are admitted only if its
international obligations, essential Dutch interests or compelling
humanitarian reasons require it. The process governing asylum is that the
applicant is interviewed twice after submitting an application, by the
Immigration and Naturalization Service (INS), if necessary with
interpreters. Applicants may avail themselves of legal assistance at both
interviews. Written reports are drawn up upon which the applicant may
comment and submit corrections and additions. In reaching a decision, INS is
assisted by country reports issued by the Ministry of Foreign Affairs, which
draws on NGO sources and reports from Dutch missions. If an objection to a
decision is rejected, the Advisory Commission is consulted in cases
concerning a fear of persecution. The Commission hears the applicant,
invites UNHCR to comment, and makes a recommendation to the Secretary of
Justice. A final appeal from the Secretary's decision is possible to the
District Court (Arrondissementsrechtbank). Legal aid is available throughout
the appeal procedure.
4.4 The State party then goes on to set out its understanding of the general
human rights situation in Sri Lanka, based on the relevant November 1998
country report issued by the Ministry of Foreign Affairs. The report notes
areas of instability and human rights violations in the conflict areas,
including brief detentions of many Tamils. However, it is the a view of the
State party and other European Union member States that the situation in
Government-controlled areas is not such that the return to these areas of
persons whose cases have carefully been considered would, by definition, be
irresponsible. The State party emphasizes that the Tamil human rights
situation is taken into account by the Secretary of Justice in each
individual case, as it is in the District Court's reviews of those
decisions.
4.5 In a series of decisions, the District Court has held the Secretary to
have acted "in all reasonableness" in judging that the overall situation in
Sri Lanka no longer entails particular hardship for returnees. Regarding
torture in particular, the Court has held that, even assuming severely
under-reported data on torture cases in the Ministry's report, there would
be no significant grounds to conclude that the likelihood of torture of
Tamils in Colombo who belong to "high risk" groups (such as young
unidentified men) is so great in general that the group as a whole runs a
substantial risk of being so exposed.
4.6 The report notes that all relatively young Tamils who speak little
Sinhalese and whose documents show them as coming from the north stand a
chance of being held for questioning following an identity check. This is
particularly so if one has recently arrived in Colombo from a war zone and
has no identity documents or valid reason for being in Colombo, or has
failed to register upon arrival. The majority are released within 48-72
hours once their identity is established and their reasons for being in
Colombo have been explained. Those held longer may be subjected to rougher
treatment, while those held for more than a week on suspicion of LTTE
involvement face a higher risk of ill-treatment. Persons held for more than
three months on firm evidence of involvement face a high risk of torture.
4.7 Accordingly, the State party argues that the situation in Sri Lanka is
not such that for Tamils in general (in particular young men), even if they
are (or have recently come) from the north, substantial grounds exist for
believing that they risk torture if returned. In this regard, the State
party further points to the District Court's consideration of the Ministry
of Foreign Affairs country report and the wide variety of other sources, as
well as the State party's willingness to have the Committee assist in
putting an end to violations of the Convention, which was demonstrated at
the consideration of its last periodic report.
4.8 Turning to the individual cases, the State party points out, in respect
of Mr. S.S., that his arrest in Colombo was for failure to identify himself
during a routine check. It is relevant that several others were arrested at
the same time, and the arrest cannot be regarded as an act specifically
directed against the author. Mr. S.S.'s subsequent release, apparently to do
as he pleased, further speaks against the authorities taking a particular
interest in him. As to the obligation to report daily, the State party
refers to its Ministry of Foreign Affairs country report explaining that an
obligation to report after release does not signify that the person should
be classified as wanted by the police, nor does a failure to comply with
this obligation automatically mean that the person's name is placed on a
list of serious suspects. In this case, the fact that Mr. S.S. was under an
obligation to report would not put him at increased risk in the event of a
return.
4.9 Additionally, the State party notes that Mr. S.S's statement that he was
on a transfer list for Boosa prison is based entirely on uncorroborated
suspicions. In any event, given that he was released after a day, it is
implausible that his name was on that list. Furthermore, if the author
believed that he was under close surveillance by the Sri Lankan authorities
for suspected LTTE activities, it is hard to see why he was willing to take
a considerable risk by leaving the country from Colombo airport. The
author's statements on the fate of his father also are inconsistent.
Contrary to the account presented in the communication and at the first
interview that his father had died in captivity of a heart attack, the
author stated subsequent to the second interview that his father had been
held at an earlier point by LTTE for a week and had been released upon
suffering a minor heart attack.
4.10 As to Mrs. S.A.'s position, the State party also argues that her
account contains no indication that she would be at any greater risk than
other Tamils upon returning to Sri Lanka. Regarding her arrest by and
possible suspicion of involvement with LTTE, the State party points out that
it is important that her work was performed under duress. She cannot be
regarded as any kind of LTTE activist, and the activities she performed were
in the service sphere. In the view of her background and experience, the
State party does not consider it plausible that the Sri Lankan authorities
would consider her a valuable informant, and in this respect she is no
different from many other Sri Lankan Tamil who at some time had been
detained in an LTTE camp.
4.11 The author's contention that the Sri Lankan authorities took an
increased interest in her is also not supported by the fact that she left
the country in the manner easiest to control, that is from Colombo airport.
Regarding her allegation that her uncle was killed by the authorities on
account of her escape, the State party points out that the contention is
based on hearsay. No corroboration or evidence of any kind has been
furnished of any link between her escape and his death. The State party
points out that the District Court's judgement of 25 January 1999 regarded
Mrs. S.A.'s testimony as unreliable.
4.12 The State party refers to the Committee's jurisprudence that, even
assuming the existence of a gross pattern of serious violations, additional
grounds must be shown why an individual would personally be at risk of
torture upon return to a country. [FN2] Moreover, "substantial grounds" for
apprehending such a fate must go beyond a mere possibility or suspicion of
torture.[FN3] Applying these tests to the instant case, the State party
argues, regarding the inconsistencies outlined above, that the authors have
failed to argue convincingly that there are substantial grounds for fearing
a "foreseeable, real and personal risk" of torture in their cases. The
authors have not satisfactorily established that they are at greater risk
than other Tamils resident in Colombo. They have never put themselves
forward as opponents of the Sri Lankan authorities, nor have they belonged
to a political party or movement. Nor do their accounts suggest close
relatives have been active, politically or otherwise, and have therefore
attracted the attention of the Sri Lankan authorities. The activities that
the authors profess to have performed under duress for LTTE are trivial in
nature and extent.
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[FN2] A.D.D. v. The Netherlands (communication No. 96/1997).
[FN3] E.A. v. Switzerland (communication No. 28/1995).
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Additional Observations by the Author
5.1 By letter of 10 April 2000, the authors restate their contention that
they have demonstrated substantial grounds for believing that they are at
personal risk of torture, thereby putting the State party in breach of
article 3 of the Convention in the event of a return.
5.2 The authors claim that both parents left the country, separately, on
false passports and therefore did not experience any problems in leaving.
They contest the State party's claim that the authorities impute no
political involvement to them, stating that while they were not officially
members of any group, both were suspected of connections to LTTE. Mr. S.S.
was suspected of spying for LTTE and being in Colombo with ill intentions,
while Mrs. S.A. was accused of working for LTTE and employed to identify
LTTE members at roadblocks. In this regard, the authors contend that the
Ministry of Foreign Affairs report ascribes a risk of being held for more
than a week to Tamils suspected of having knowledge of LTTE.
5.3 As to Mr. S.S.'s account, the authors reject the State party's assertion
that, upon Mr. S.S.'s release from police custody, he was free to do as he
pleased and that they had no special interest in him; how could this be the
case if he had to report to the police daily? The authors reject the State
party's classification, in the absence of proof, of Mr. S.S.'s placement on
the Boosa transfer list as "implausible", claiming that such a conclusion
does not follow simply from being released after a day. Nor, claim the
authors, had Mr. S.S.'s statements during the asylum procedure previously
been doubted or considered implausible, nor had there been a request for
further information on this aspect. There was therefore no reason to doubt
this particular important statement. Similarly, simply because the account
of the death of Mr. S.S.'s father was perhaps mistakenly transcribed did not
make the statement unreliable.
5.4 As to Mrs. S.A.'s account, the authors wish to underline that she had
told the authorities that she had been forced to work for LTTE, and the
State party's statement that she cannot be regarded as an LTTE activist
cannot be substantiated. The State party allegedly ignores her use as an
informer to denounce alleged LTTE members. Concerning her uncle's death, the
authors claim that, while unable to produce a death certificate, there is no
reason to doubt the information. The District Court's judgement on witness
credibility is no reason to doubt her statements, which the authors contend
had never been doubted by the State party. Therefore, Mrs. S.A. ought to be
given the benefit of the doubt on this issue.
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. 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 all domestic remedies have been exhausted, and that all other
admissibility requirements have been met. Accordingly, the Committee
considers the communication admissible. Since both the State party and the
author have provided observations on the merits of the communication, the
Committee proceeds with the consideration of those merits.
6.2 The issue before the Committee is whether the expulsion of the authors
to Sri Lanka would violate the State party's obligation under article 3 of
the Convention not to expel or return 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.
6.3 The Committee must decide, pursuant to article 3, paragraph 1, whether
there are substantial grounds for believing that the authors would be in
danger of being subjected to torture if returned to Sri Lanka. In reaching
this decision, it must take into account all relevant considerations,
pursuant to article 3, paragraph 2, including the existence of a consistent
pattern of gross, flagrant or mass violations of human rights. The aim of
the determination, however, is to establish whether the individuals
concerned would be personally at risk of being subjected to torture. The
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in the country does not by itself constitute a sufficient
ground for determining that a particular person would be in danger of being
subjected to torture upon returning to that country; there must be other
grounds indicating that he or she would be personally at risk. Similarly,
the absence of a consistent pattern of gross violations of human rights does
not mean that a person cannot be in danger of torture in his or her specific
circumstances.
6.4 The Committee recalls 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 author
would be in danger of being subjected to torture were he/she to be expelled,
returned or extradited, the risk of torture must be assessed on grounds that
go beyond mere theory or suspicion. However, the risk does not have to meet
the test of being highly probable" (A/53/44, annex IX, para. 6).
6.5 In the present case, the Committee notes that the authors were provided
with a comprehensive examination of their claims, with multiple
opportunities to contribute to and correct the formal record, with an
investigation by an independent advisory commission as well as judicial
review. The Committee notes the attention drawn by the State party to the
determinations of its various authorities of a number of inconsistencies and
contradictions in the authors' accounts, casting doubt on the veracity of
the allegations. It also notes the explanations provided by the authors in
that respect.
6.6 The Committee finds that the authors have failed to show significant
grounds that the evaluation of the State party's authorities was arbitrary
or otherwise unreasonable, in concluding generally that the likelihood of
torture of Tamils in Colombo who belong to a "high risk" group is not so
great that the group as a whole runs a substantial risk of being so exposed.
Nor have they demonstrated any inaccuracy in the State party's conclusion
that the situation in Sri Lanka is not such that for Tamils in general, even
if they are from the north of the country, substantial grounds exist for
believing that they risk torture if returned from abroad.
6.7 As to the authors' individual circumstances, the Committee considers
that the respective detentions suffered by the authors do not distinguish
the authors' cases from those of many other Tamils having undergone similar
experiences, and in particular they do not demonstrate that the respective
detentions were accompanied by torture or other circumstances which would
give rise to a real fear of torture in the future. In the circumstances, the
Committee considers that the authors have failed to demonstrate, generally,
that their membership of a particular group, and/or, specifically, that
their individual circumstances give rise to a personal, real and foreseeable
risk of being tortured if returned to Sri Lanka at this time.
6.8 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 authors' removal from the State
party would not constitute a breach of article 3 of the Convention.
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