CAT/C/27/D/175/2000

S.T. (name withheld) v. The Netherlands,

Communication No. 175/2000,

U.N. Doc. CAT/C/27/D/175/2000 (2001).

Communication No. 175/2000

Submitted by : S.T (name withheld) [represented by counsel]

Alleged victim: The author

State party: The Netherlands

Date of communication: 27 November 2000

The Committee against Torture, established under Article 17 of the

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment,

Meeting on 23 November 2001,

Having concluded its consideration of communication No. 175/2000,

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 petitioner is Mr. S.T., a citizen of Sri Lanka, born on 3 January

1979, currently residing in a shelter for asylum-seekers in the Netherlands.

He claims that his forcible return to Sri Lanka would constitute a violation

by the Netherlands 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 5 December 2000, the Committee forwarded the communication to

the State party for comments and requested, under Rule 108, paragraph 9 of

the Committee's rules of procedure, not to return the petitioner to Sri Lanka

while his petition was under consideration by the Committee. The State

party acceded to this request.

Facts as submitted by the petitioner

2.1 The petitioner is a Tamil from the area of Jaffna in the North of Sri

Lanka. For two months in 1994, he claims to have worked for the Tamil

Tigers ("LTTE") in an auto-repair shop in Killinochi. During this time he

also took care of the wounded and distributed food supplies.

2.2 In 1996, he moved to Vavuniya. In April 2000, there was an attack by

the LTTE on a PLOTE (an organisation that works closely with the Sri

Lankan army) camp. The petitioner, along with many others in the area, was

detained by PLOTE forces after this incident. He was allegedly tortured

using hot instruments which caused scars on his body. He did not bring this

event nor the fact that he had scars as a result of this alleged ill-treatment to

the attention of the Dutch authorities until his appeal.

2.3 On 10 October 2000, the petitioner was detained for one day by PLOTE,

interrogated regarding his involvement with the LTTE and assaulted.

2.4 On 15 October 2000, he was arrested and detained by the Sri Lankan

army for one day. During the day he was allegedly kicked, hung upside

down and beaten. He allegedly still has pain in his stomach from this

incident particularly when he bends over. He bears no scars from this

incident. A member of his family intervened and - after payment - he was

freed. Upon release he went to stay with his aunt.

2.5 On 17 October 2000, a PLOTE soldier called at the petitioner's home

inquiring about his whereabouts. On 24 October 2000, the petitioner

travelled to Colombo.

2.6 On 25 October 2000, and because of the incidents of 10 and 15 of

October, the petitioner left Sri Lanka and on 26 October 2000, arrived in the

Netherlands, having passed through another country. The petitioner does not

know which country he passed through. When he arrived in the Netherlands

he called his sister, who told him that the Sri Lankan army and PLOTE were

again making inquiries about his whereabouts.

2.7 On arrival in the Netherlands, the petitioner applied for asylum,

whereupon he had his first interview with the Immigration and

Naturalisation Service ("IND"), which is under the responsibility of the

State Secretary for Justice. On the basis of this interview and with reason to

believe that the application was unfounded, the IND decided to deal with the

asylum request in an accelerated procedure. The petitioner was, however,

detained while his application was being considered. He was released from

detention on 26 February 2001, and since then has been residing in a shelter

for asylum-seekers.

2.8 On 27 October 2000, the petitioner had a second interview with the IND.

On 28 October 2000, his request for asylum was refused on the grounds that

it was manifestly unfounded. On the same day, the petitioner's lawyer

lodged an appeal against this decision and against the decision to keep him

in custody. By judgement of 13 November 2000, The Hague District Court,

declared the appeal unfounded. According to counsel, this decision was

unfair for the following main reasons:

o The Court indicated that the petitioner's scars alleged to have been

caused in April 2000, but not mentioned by the petitioner or his

lawyer until the appeal hearing, did not prove that the petitioner

would be personally at risk of torture, as the incident occurred as part

of a general enquiry into the death of PLOTE soldiers. Counsel,

however, contends that scars on one's body constitute a risk factor,

since they can cause suspicion of LTTE involvement by the Sri

Lankan authorities. Counsel explains that the incident in April 2000

was not mentioned prior to the appeal as it was not because of these

incidents but the incidents in October that the petitioner had fled Sri

Lanka. Apparently, in his interview with the Ministry the petitioner

had been asked what had made him flee.

o Counsel also submits that such misunderstandings are unavoidable

when the accelerated procedure is employed. He says that this

procedure, where an asylum application may be considered in 48

hours from the time of arrival, where the exhausted asylum-seeker is

detained with little privacy and spends only three hours with a legal

advisor after the first interview with the Ministry, during which there

are inevitably problems with interpretation, is obviously not

conducive to receiving a correct version of the facts of the case from

the asylum-seeker.

The complaint

3. Counsel claims that, in view of the earlier treatment received by the

petitioner at the hands of PLOTE and the Sri Lankan army, there are

substantial grounds for believing that he would be personally in danger of

being subjected to torture on return to Sri Lanka and, therefore, the

Netherlands would be violating article 3 of the Convention if he were

returned there. Counsel points out that according to respected sources, "a

consistent pattern of gross, flagrant or mass violations of human rights",

prevails in Sri Lanka, and refers in this regard to article 3(2) of the

Convention. Counsel also claims that given the human rights situation in Sri

Lanka, it is inappropriate to decide on such cases in an accelerated

procedure.

The State party's observations on admissibility and merits

4.1 On 1 June 2001, the State party submitted its comments on the

admissibility and merits of the communication. The State party does not

contest the admissibility of the communication.

4.2 As to the merits, the State party begins by describing the refugee

determination process in the Netherlands. Asylum applications are dealt

with by the IND. If an application for admission as a refugee can be

assessed within 48 hours, it is dealt with at the application centre, of which

there are four. Asylum seekers are interviewed with the aid of a

questionnaire, which contains no questions regarding the applicant's reasons

for seeking asylum. An interpreter is also made available if necessary.

4.3 The next step consists of an in-depth interview prior to which the

applicant has an opportunity to prepare with the assistance of a legal advisor

for two hours. If the preparation for the second interview takes more than

two hours the time limit of 48 hours within which a decision must be taken

on the application is extended commensurately. The second interview

focuses mainly on the reasons for leaving the country of origin. The

applicant is given an opportunity to correct or add information to the report

of this interview with the assistance of his/her legal advisor and with a

preparatory time of three hours, but this period may be extended, if

necessary. Subsequently, an officer from IND takes a decision on the

application.

4.4 The State party submits that to assist IND officials in assessing asylum

applications, the Minister of Foreign Affairs regularly issues country reports

on the situation in countries of origin. In drawing up these reports, the

Minister makes use of published sources and reports by non-governmental

organisations, as well as reports by Dutch diplomatic missions in the

countries of origin.

4.5 The State party states that asylum seekers staying at an application

centre have access to medical care. Basic facilities are also available at such

centres, including a dormitory, daytime activities and the provision of hot

and cold meals. The State party, states that if an application is refused the

asylum-seeker may request the Minister of Justice to review the decision

and then appeal to the District Court. In cases where the individual has been

deprived of his/her liberty or whose liberty has been restricted, the petitioner

may lodge an appeal immediately with the District Court.

4.6 With respect to the general human rights situation in Sri Lanka, the State

party submits that the current policy on asylum-seekers from Sri Lanka is

based on the Minister of Foreign Affairs' country report of 28 July 2000,

which describes recent developments there. The State Secretary for Justice

concluded from this report that the return of rejected asylum-seekers is still

a responsible course of action. Though the ethnic conflict in Sri Lanka did

intensify significantly in October/November 1999, creating a very unstable

situation in the north and east of the country, in government-controlled

areas, Tamils can still find alternative places of residence.

4.7 The State party also states that the UNHCR takes the view that asylum-

seekers from Sri Lanka whose application for asylum are refused after

careful consideration can be returned to their country of origin. According to

the State party, the Minister's country report of 22 August 2000 indicates

that this position has not changed. In addition, the State party quotes from

the Minister's report, dated 27 April 2001, which discusses the risk of

detention, prolonged or otherwise, that Tamils with scars are exposed to. It

states that "All sources consulted say that external scars can prompt further

interrogation, but not on their ownNone of the sources consulted was of the

opinion that a scar would constitute a risk factor for someone who had the

necessary documents and a credible reason for being in Colombo.."

4.8 The State party refers to the Committee's jurisprudence that an

individual must provide specific grounds indicating that he/she would be

personally at risk of being tortured if returned to the receiving

country. (1) The State party contests the allegation that the petitioner would

be so at risk. It states that the petitioner has failed to demonstrate that he

would be under suspicion by either the authorities or PLOTE, especially

since his alleged work for the LTTE took place more than seven years ago.

The State party does not consider it plausible that the petitioner would now

encounter problems as a result to these alleged activities.

4.9 The State party argues that after his arrest by PLOTE and the Sri Lankan

army in October 2000, he was released on both occasions after only one day.

The State party finds it implausible that the petitioner would have been

released after such a short time if he had been suspected of being involved

with the LTTE. In addition, the State party finds it significant that the

petitioner travelled to Colombo and then to the airport with the permission

of the authorities after being held in detention in October 2000 and being

checked twice during this trip without any difficulties from the authorities.

The petitioner then left the country using his own authentic passport. This

sequence of events, it is submitted, does not suggest that the Sri Lankan

authorities bear any ill-will towards the petitioner personally or suspect him

of being involved with the LTTE.

4.10 The State party further submits that the petitioner's statement that due

to the brevity of the procedure at the application centre he was unable to

discuss his scars, does not detract from the correctness of the decision on the

application for asylum. It is of the opinion that the procedure provides

sufficient guarantees that an application for asylum will be dealt with

carefully as described from paragraphs 4.2 to 4.5 above. With respect to the

assessment of the petitioner's case, the State party submits that he prepared

for the second interview with the assistance of a legal advisor, that it was

made clear to him that he should disclose all information relevant to his

application, he was notified of the importance of the report of this interview

to the asylum procedure and informed not to withhold any information

relating to his application for asylum. During this interview, the petitioner

was specifically asked if he had scars from the maltreatment he had

undergone and he responded in the negative. The petitioner discussed the

report of the second interview with his legal advisor – which went on for

more than three hours – whereupon corrections and additions to the report

were submitted. These corrections and additions made no mention of the

alleged arrest in April 2000 or of the scars obtained as a result of

maltreatment during that arrest. Thus, the State party is of the opinion that

the petitioner was sufficiently notified of the necessity to make a complete

statement and that his asylum application was dealt with carefully at the

application centre.

4.11 Further, on the issue of the petitioner's scars, the State party is of the

view that the petitioner has not demonstrated that he was detained and

maltreated in April 2000 and that his scars are a result of this maltreatment.

These claims have not yet been corroborated by means of a medical report,

and it would not be unreasonable, the State party submits, to expect such a

report, given the duration of the petitioner's stay in the Netherlands. The

State party also points out that it has not been established that the alleged

scars, gave rise to suspicion of involvement in the LTTE during the two

alleged arrests in October 2000, and that the petitioner himself was not of

the opinion that the scars constituted a risk factor, since his alleged arrest

and maltreatment in April 2000 were not the reason for his departure from

Sri Lanka.

4.12 The State party also adds that in a letter, dated 1 February 2001, the

petitioner was given an opportunity to submit another application for

asylum, in which the statements regarding his arrest in April 2000 could

have been included. He would have been allowed to remain in the

Netherlands pending the results of this application. The petitioner did not

make use of this opportunity.

Petitioner's comments on the State party's submission

5.1 In his response, on 24 July 2001, to the State party's submission the

petitioner reiterates the claims made in the initial submission, including the

claim about the unfairness of the accelerated asylum procedure. In this

regard, he also submits that although a legal advisor may be present at the

first interview he cannot participate by asking questions himself nor assist

the asylum–seeker in the preparation of this interview. In practice, the legal

advisor has no time even to attend this first interview. This is very

important, as it is after this first interview that the decision is made whether

to deal with the case by the accelerated procedure or not and whether the

asylum-seeker will be kept in detention. The petitioner further states that he

had three different lawyers acting for him at different times and that neither

of his first two lawyers were familiar enough with the situation in Sri Lanka

to ask him the appropriate questions, including a question as to the

possibility of scars on his body. It was only the petitioner's third lawyer that

recognised the importance of this issue in Sri Lanka.

5.2 The petitioner contests the State party's view of the general human rights

situation in Sri Lanka. He questions the sources referred to in the Ministry's

report of July 2000 and states that, the statement in this report that the

situation gives cause for concern is an understatement. He also refers to a

report by the UNHCR which states that if Tamil asylum-seekers with scars

are returned to Sri Lanka they may be more prone to adverse identification

by the security forces and taken for rigorous questioning and potential ill-

treatment The petitioner also refers to other reports from international

organisations to support his view that the presence of scars on the body of

returned Tamils to Sri Lanka puts them at particular risk. He states that if

returned to Colombo he runs the risk of an identity and background check as

he does not have a valid reason for wanting to stay in Colombo, has no

police-registration in Colombo and does not have a National Identity Card

with him.

5.3 On the State party's point that if the petitioner had been a suspect he

would not have been able to travel to Colombo and flee from the country

having being checked in twice by the authorities on an authentic passport, he

states that there is no evidence showing that the authorities have a central

system to register all those suspected of involvement with the LTTE. He

says also that this fact was confirmed by the July 2000 report of the Ministry

of Foreign Affairs.

5.4 On the State party's point that a second asylum application could have

been lodged he states that this would have been pointless as the District

Court was informed about his scars and still decided that there was no risk

involved by removing him to Sri Lanka. Thus, there were no new facts or

circumstances to present on his behalf. He goes on to say that he did show

his scars to the Court, including the prosecution, and therefore a medical

report is an unnecessary requirement.

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. In this respect 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 the State party has not contested the admissibility of the

communication. As the Committee sees no further obstacles to admissibility,

it declares the communication admissible and proceeds immediately to the

consideration of the merits.

6.2 The Committee must decide whether the forced return of the petitioner

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 order to reach 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. The aim,

however, is to determine whether the individual concerned would personally

risk torture in the country to which he or she would return. It follows that

the existence of a consistent pattern of gross, flagrant or mass violations of

human rights in a country does not as such constitute sufficient grounds for

determining whether the particular person would be in danger of being

subjected to torture upon his return to that country; additional grounds must

be adduced to show that the individual concerned would be personally at

risk. Conversely, the absence of a consistent pattern of gross violations of

human rights does not mean that a person cannot be considered to be in

danger of being subjected to torture in his or her specific circumstances.

6.3 The Committee has noted the petitioner's claim that he is in danger of

being subjected to torture if he is returned to Sri Lanka due to his previous

involvement with the LTTE, that he has allegedly already been maltreated

twice by the authorities, and that he has scars on his body which the

authorities would likely assume to have been caused by fighting for the

LTTE. It has also considered the claim that, because of the brevity of the

accelerated procedure, the petitioner was prevented from informing the

authorities early on in the procedure that he had scars from earlier

maltreatment and that this information may have allowed the authorities to

consider his application more favourably. The Committee has also noted the

State party's description of the procedure, its detailed account of the

measures in place, including regular contact with a legal advisor and the

possibility of appeal, to allow for due process of the asylum applications. It

also notes, that the Court of Appeal did consider the question of the

petitioner's scars and that it was not solely on this issue but on a

consideration of all the facts at its disposal that the Court decided not to

grant asylum.

6.4 Although the State party appears to concede that, the petitioner was

arrested and detained by the authorities twice in October 2000, the

Committee notes that it was not of the view that the petitioner is suspected

of involvement with the LTTE, considering the fact that he was held for

only one day on each occasion of his arrest and was never actually a

member of this organisation. The Committee observes that the petitioner

does not contend that he was a member of the LTTE nor does he contend

that he was involved in any political activity. In addition, the Committee

notes that the petitioner only worked for two months for this organisation,

six years prior to his first arrest. In the Committee's view, the petitioner has

not alleged any other circumstances, other than the presence of scars on his

body, which would appear to make him particularly vulnerable to the risk of

being tortured. For the abovementioned reasons, the Committee finds that

the petitioner has not provided substantial grounds for believing that he

would be in danger of being tortured were he to be returned to Sri Lanka and

that such danger is personal and present.

7. 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 petitioner's removal to Sri

Lanka by the State party would not constitute a breach of article 3 of the

Convention.

Notes

1. 1 The State party refers to A v. The Netherlands, Case No. 91/1997,

adopted on13 November 1998, E.A. v. Switzerland, Case No. 28/1995,

adopted on 10 April 1997, and K.N. v. Switzerland, Case No. 94/1007,

adopted on 15 May 1998.