CAT/C/26/D/142/1999

S.S. and S.A. (names withheld) v. The Netherlands,

Communication No. 142/1999,

U.N. Doc. CAT/C/26/D/142/1999 (2001).

Communication No. 142/1999

Submitted by: S.S. and S.A. (names withheld) [represented by counsel]

Alleged victim: The authors

State party: The Netherlands

Date of communication: 12 July 1999

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. (1) 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.

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. (2) Moreover, "substantial grounds" for

apprehending such a fate must go beyond a mere possibility or suspicion of

torture.(3) 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.

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.

Notes

1. UNHCR did not take up an invitation from the Advisory Commission to

make representations on behalf of the authors in this case.

2. A.D.D. v. The Netherlands (communication No. 96/1997).

3. E.A. v. Switzerland (communication No. 28/1995).