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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 12 May 2004,
Having concluded its consideration of complaint No. 182/2001, submitted to
the Committee against Torture by Mr. A. I. under article 22 of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
Having taken into account all information made available to it by the author
of the complaint, his counsel and the State party,
Adopts the following:
Decision of the Committee Against Torture Under Article 22 of the Convention
1.1 The complainant is A. I., a Sri Lankan national of Tamil origin, born in
1977, currently residing in Switzerland, and awaiting his deportation to Sri
Lanka. He claims that his forcible return to Sri Lanka would amount to a
violation by Switzerland 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 25 April 2001, the Committee forwarded the communication to the State
party for comments. The Committee notes that the State party decided, of its
own motion, not to return the complainant to Sri Lanka while his case is
pending before the Committee.
The Facts as Submitted by the Complainant:
2.1 The complainant is from Chankanai in the North of Sri Lanka. In July
1995, he and his family fled the hostilities between combatants in the civil
war, and temporarily stayed in a refugee camp near Navaly. During the
bombing of a Catholic church in Navaly by the Sri Lankan Air Force, he
witnessed the killing of numerous refugees who had sought shelter in that
church, including some of his remote relatives. The complainant and his
family subsequently went to the then LTTE �[FN1] controlled Chavakachcheri,
where his younger brother, S., joined the LTTE.
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[FN1] Liberation Tigers of Tamil Elam.
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2.2 In January 1996, the complainant and his mother traveled to Colombo to
make arrangements for his departure from Sri Lanka. Following a bomb attack
on a bank in Colombo, in which a neighbour was involved, the complainant and
his mother were arrested by security forces on 31 January 1996, and detained
at the Pettah police station. On 8 and 16 February 1996, the complainant was
visited by a delegation of the International Committee of the Red Cross (ICRC)
and, on 22 February 1996, he and his mother were released from detention
upon payment of a bribe.
2.3 On 30 March 1996, the complainant was arrested during an identity check
by an army patrol that brought him to Welikade prison, where he was
interrogated about his connection with the LTTE. After his release on 1
January 1997, he was returned to Chankanai. Meanwhile, his younger brother
had died, on 18 July 1996, during an LTTE attack against an army camp near
Mullaitivu.
2.4 Following his return to Chankanai, the complainant and his second
brother, T., were arrested six or seven times, between April and June 1997,
by militia of the EPRLF [FN2] and TELO. [FN3] They were taken to a camp near
Puttur, where they were interrogated about their links with the LTTE. During
interrogation, they were allegedly beaten; in one case, they received blows
with an iron chain and were burnt on their back with a hot piece of iron, in
order to extract a confession. In July 1997, T. was once again arrested by
militia; he has disappeared since.
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[FN2] Eelam People's Revolutionary Liberation Front.
[FN3] Tamil Eelam Liberation Organization.
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2.5 Thereafter, the complainant returned to Colombo, from where he left for
Switzerland via Turkey and Italy on 22 August 1997, using a false passport.
2.6 On 26 August 1997, the complainant applied for political asylum in
Switzerland. Following interviews by the Federal Office for Refugees (BFF)
on 26 August 1997 and 22 April 1998, and by the alien police on 14 October
1997, the BFF rejected his asylum application on 28 October 1998, at the
same time ordering him to leave the country by 15 January 1999. the order
was based on the following grounds: (a) the lack of credibility of his
claims concerning his detention at Welikade prison and the alleged
disappearance of his second brother, T., as well as inconsistencies in the
description of his and his brother's ill-treatment at the hands of the EPRLF/TELO;
(b) the absence of a sufficient link, in time and substance, between his
detention at the Pettah police station from 31 January to 22 February 1996
and his departure from Sri Lanka on 22 August 1997; and (c) the absence of a
sufficiently substantiated risk of torture upon return to Sri Lanka, where
the complainant would be able to resettle in areas not affected by the
hostilities between the parties to the conflict.
2.7 On 30 November 1998, the complainant lodged an appeal with the Swiss
Asylum Review Commission (ARK) and subsequently submitted two medical
reports, dated 6 January and 5 September 1999, confirming that he suffers
from post-traumatic stress disorder. By submission of 10 October 1999, the
BFF maintained its position, arguing that the complainant could receive
adequate therapeutic treatment at the Family Rehabilitation Centre in
Colombo or at one of its 12 branch offices in Sri Lanka. Moreover, it noted
a contradiction between the medical report of 6 January 1999, which referred
to the complainant having been detained for 14 days in Colombo prior to his
arrest on 31 January 1996, and the complainant's failure to raise this point
during the interviews.
2.8 On 30 November 2000, the ARK dismissed the complainant's appeal. It
endorsed the findings of the BFF and added the following grounds: (a) that
none of the complainant's alleged arrests resulted in criminal proceedings
against him, for collaboration with the LTTE; (b) that the fact that the
complainant was twice detained in Colombo was irrelevant for his asylum
application; (c) that, even if the complainant suffered from post-traumatic
stress disorder, he had failed to substantiate that this was the result of
persecution by the Sri Lankan authorities; (d) that the complainant had
failed to submit reliable documents to prove his identity; and (e) that the
complainant's deportation to Sri Lanka would not constitute an unreasonable
hardship, in the absence of sufficient grounds for believing that he would
be subjected to torture, and given that his family continued to live in the
northern Province (Tellipalai) and that adequate treatment for his
post-traumatic stress disorder would be available in Sri Lanka.
2.9 The BFF thereafter set a new deadline for the complainant to leave
Switzerland by 5 February 2001.
The Complaint:
3.1 The complainant claims that his forcible return to Sri Lanka would
constitute a violation by Switzerland of article 3 of the Convention, since
there are substantial grounds for believing that, as a young Tamil who was
repeatedly arrested and interrogated by the authorities and militia groups,
and whose brother was known to be an LTTE member, he would be subjected to
torture upon return to Sri Lanka.
3.2 He submits that the Sri Lankan security forces carry out daily raids and
street inspections against Tamils, who can be arrested for up to 18 months,
under the Prevention of Terrorism Act (PTA) without an arrest warrant and
without being informed of the charges against them. Under the Emergency
Regulations (ER) supplementing the PTA, this period may repeatedly be
prolonged for 90 days by a judicial commission whose decisions are not
subject to appeal. During this time, detainees are frequently interrogated
about their contacts with the LTTE, and are often subjected to torture,
ill-treatment or even extra-judicial execution.
3.3 By reference to several reports on the human rights situation in Sri
Lanka, the complainant claims that the risk of torture for Tamils has not
diminished significantly in recent years.
3.4 The complainant submits that no clear distinction between governmental
and non-governmental persecution, as envisaged in the Swiss Political Asylum
Act, can be made in civil war situations such as in Sri Lanka, which were
often characterized by either the total absence of control or its
simultaneous exercise by different groups in certain areas. Thus, in certain
parts of the country, Tamil militia such as the EPRLF or the TELO persecuted
LTTE supporters in close cooperation with the Sri Lankan army, and
frequently tortured suspects in their own prison camps. Such treatment was
therefore equivalent to State persecution.
3.5 The complainant argues that because of his post-traumatic stress
disorder, a sequel of his torture in the EPRLF/TELO camp, as well as his
experience related to the bombing of the church in Navaly, he is likely to
display uncontrolled reactions in situations of danger such as raids and
street inspections, which would further increase his risk of arrest and
torture by the Sri Lankan police.
3.6 The complainant claims that politically persecuted refugees are
frequently without papers and that he has sufficiently proven his identity,
with a photocopy of his identity card and his birth certificate. He could
not be expected to obtain a passport or a new identity card by presenting
himself to Sri Lankan authorities.
3.7 The complainant claims that the same matter has not been, and is not
being, examined under another procedure of international investigation or
settlement, and that he has exhausted domestic remedies. In particular, he
claims that an extraordinary appeal to the ARK would be futile in the
absence of fresh evidence.
The State Party's Observations on Admissibility and Merits:
4.1 On 8 June 2001, the State party conceded that the communication is
admissible; on 29 November 2001, it submitted its observations on the
merits. It endorses the arguments of the Federal Office for Refugees and the
Asylum Review Commission in the complainant's case, and concludes that the
complainant has failed to substantiate a real and personal risk of being
subjected to torture, in the event of his return to Sri Lanka.
4.2 The State party argues that the complainant failed to submit any new
elements which would justify a challenge of the decisions of the BFF and the
ARK. Similarly, the evidence presented during domestic asylum proceedings
(i.e. press articles, a letter from his mother and a ICRC identity card) was
insufficient to substantiate his allegations of past persecution, or a
future risk of torture in Sri Lanka. The medical reports confirming his
post-traumatic stress disorder were based on his own account and ignored
other possible, and more likely, causes for these symptoms.
4.3 While conceding that the complainant was detained at the Pettah police
station in Colombo from 31 January to 22 February 1996, the State party
considers this detention irrelevant for his claim that he is at risk of
torture upon his return to Sri Lanka. Likewise, no such risk could be
inferred from the frequent identity controls and arrests of Tamils in Sri
Lanka.
4.4 The State party submits that the fact that no criminal proceedings were
instituted against the complainant shows that he is not personally at risk
of being tortured by the Sri Lankan security forces. For the State party,
the EPRLF and TELO militia, if at all active in the Chankanai area in 1997,
never showed an interest in the complainant's own activities, but allegedly
tortured him to extract information about the LTTE connection of his
deceased brother, S.
4.5 Lastly, the State party argues that the complainant could prove, if
returned to Sri Lanka, that he lived in Switzerland from 1997 onwards,
thereby dispelling any suspicion of having collaborated with the LTTE during
that time.
Complainant's Comments on the State Party's Submissions
5.1 On 22 December 2003, in his comments on the State party's merits
submission, counsel argues that contradictions in the complainant's
statements before the Swiss authorities resulted from a "loss of reality".
Traumatized persons often experience difficulties in remembering the details
and chronology of their history.
5.2 The complainant challenges that the EPRLF/TELO had no longer been active
in the Chankanai region between April and June 1997, on the basis that the
State party had failed to cite any verifiable reference for this contention.
5.3 The complainant rejects the State party's argument that he did not
sufficiently corroborate his claims. Thus, his deceased brother's LTTE
membership was a documented fact and sufficient ground for believing that
the Sri Lankan authorities would hold him in suspicion. Moreover, acts of
torture were generally concealed by the responsible State organs, with the
result that evidence was frequently unavailable.
5.4 The complainant argues that, instead of discrediting the psychiatric
reports submitted by him, the State party should have sought the medical
opinion of a State examiner. While not proving his allegations, the existing
reports of January and September 1999 at least confirmed that his
posttraumatic stress disorder was the direct result of past experiences of
torture.
5.5 Lastly, the complainant submits that numerous incidents of torture and
ill-treatment in Sri Lankan prisons were reported in 2003 and that, despite
ongoing peace negotiations, respect for the rule of law is still not ensured
in Sri Lanka.
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 (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 its
examination on the merits of the case.
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
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).
6.3 The Committee notes from recent reports on the human rights situation in
Sri Lanka that, although efforts have been made to eradicate torture,
instances of torture continue to be reported, and complaints of torture are
often not dealt with effectively by the police, judicial officers and
doctors. However, the Committee equally notes the conclusion of a formal
cease-fire agreement between the Government and the LTTE in February 2002.
While recent political developments and changes in Government may have
created impediments to the effective pursuit of the ongoing peace process,
it remains that the process itself has not been abandoned. The Committee
further recalls that, after conducting its inquiry on Sri Lanka under
article 20 of the Convention, it concluded that the practice of torture was
not systematic in the State party. [FN4] The Committee finally notes that a
large number of Tamil refugees have returned to Sri Lanka in recent years.
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[FN4] Report A/57/44, Chapter IV.B, at para. 181.
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6.4 The Committee recalls, however, that the aim of its examination is to
determine whether the complainant would personally risk torture in the
country to which he 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 complainant would be in danger
of being subjected to torture upon his return to Sri Lanka. Additional
grounds must be adduced to show that he would be personally at risk.
Conversely, the absence of a consistent pattern of gross violations of human
rights does not necessarily mean that the complainant cannot be considered
to be in danger of being subjected to torture in the specific circumstances
of his case.
6.5 As regards the personal risk the complainant would run to be subjected
to torture at the hand of the Sri Lankan security forces, the Committee has
noted his claim that he was tortured, in 1997, by the EPRLF and TELO, which
had operated in cooperation with the Sri Lankan army. Even if these
allegations were assumed to be true, the Committee considers that it does
not necessarily follow that the complainant would presently be at risk of
being subjected to torture again, given the ongoing peace process in Sri
Lanka and the fact that many Tamil refugees have to that country in recent
years.
6.6 Insofar as the complainant argues that his post-traumatic stress
disorder would result in uncontrolled reactions in stressful situations,
thereby increasing the risk of his arrest by the Sri Lankan police, the
Committee observes that the absence of any criminal proceedings against the
complainant in the past, as well as his low political profile, can in turn
be adduced as factors likely to lower any risk of serious consequences,
should he be arrested again.
6.7 The Committee considers it unlikely that the Sri Lankan authorities, or
the militia groups allegedly acting with their consent or acquiescence,
remain interested in the LTTE involvement of the complainant's younger
brother, who died almost eight years ago.
6.8 With regard to the question of whether the complainant would be able to
receive adequate psychiatric treatment for his post-traumatic stress
disorder in Sri Lanka, the Committee recalls that the aggravation of the
complainant's state of health possibly resulting from his deportation to Sri
Lanka would not amount to torture within the meaning of article 3, read in
conjunction with article 1, of the Convention, which could be attributed to
the State party itself. [FN5]
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[FN5] See Communication No. 186/2001, K. K. v. Switzerland, Decision adopted
on 11 November 2003, at para. 6.8.
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6.9 The Committee therefore is of the view that the complainant has not
adduced sufficient grounds which would lead the Committee to conclude that
he would run a substantial, present and personal risk of torture if returned
to Sri Lanka.
7. The Committee against Torture, acting under article 22, paragraph 7, of
the Convention, 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, 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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