Date of communication:
30 October 1997
presented by the author
5.1 In its observations,
dated 19 January 1998, the State party informs the Committee that the
necessary measures have been taken to suspend the author's expulsion.
While recognizing the importance of interim measures of protection to
guarantee a person's effective recourse to the Committee under article
22 of the Convention, the State party notes that the possibility of
demanding interim measures is not foreseen in the Convention itself
and that article 108, paragraph 9, is just a rule of procedure. According
to the State party, the individual communication to the Committee is
and should remain an exceptional remedy, not the automatic follow up
after exhaustion of domestic remedies. The regular issuing of requests
under rule 108, paragraph 9, could interfere with the subsidiary nature
of the communications procedure.
6. With regard to the admissibility
of the present communication, the State party states that it is not
aware of the case having been submitted to another instance of international
investigation or settlement. The State party does not contest the admissibility
for failure to exhaust domestic remedies either.
7.2 The State party submits
that the facts as presented by the author have not been the object of
a thorough examination by the authorities, as his request for asylum
was rejected following the existing case law, since he mainly invoked
the situation in his country as ground for asylum and no personal grounds
of persecution. The fact that the authorities have not challenged the
facts as presented by the author can thus not be taken to indicate that
they accepted them as established. Indeed, the ODR, in its decision
of 30 October 1996, expressed doubt with regard to the likelihood of
some of the events recounted by the author.
7.4 Furthermore, the author
has never claimed to have been subjected to torture . In this context,
the State party refers to the Committee's decision in communication
No. 38/1995 Babikir v. Switzerland, Views adopted on 9 May
1997. where it took into consideration the fact that the author had
never claimed that he had been tortured in reaching its decision that
his case showed no violation of article 3. Moreover, the State party
points out that the alleged arrest and detention in the instant case
date back more than seven years, and that it would therefore be difficult
to admit a link between this event and the author's present fear of
persecution. During the hearing before the immigration authorities,
the author declared that since his release he had lived in Kilinochi
for 11 months without any problem, as well as in Colombo.
7.6 The State party notes
that the author now claims that he risks persecution by the army, whereas
before the immigration authorities he claimed that "different movements"
had stopped and interrogated him. In this context, the State party refers
to the hearing before the immigration authorities, where the author
replied to the question what he would risk upon return to his country,
that he risked being taken by the movement for which he would have to
work. The State party concludes that the author's asylum request was
mainly based on the threat by the LTTE, whereas before the Committee
he claims risk of persecution by the army. The State party recognizes
the possibility that a person is threatened by the State and an opposition
movement at the same time, but does not believe that this is so in the
author's case. Rather, the State party considers it likely that the
author has changed his story in view of the text of article 3 of the
Convention, that the risk of torture must be originating in State authority.
Again referring to the minutes of the hearing before the immigration
authorities, the State party notes that the author indicated as reasons
for his departure the problems with the movement and bombardments.
7.7 The State party concludes
that the author has failed to show that he would risk to be subjected
to torture upon return to Sri Lanka. The State party adds that the situation
of human rights in a country cannot bring a person within the protection
of article 3 in the absence of a personal risk. According to the State
party, the human rights situation in Sri Lanka has improved considerably
since October 1994, after the installation of the Human Rights Task
Force. It also points out that the author could reside in a part of
Sri Lanka that does not suffer from civil war.
8.2 Counsel submits that
the author is threatened by serious persecution from the Sri Lanka security
services, since the war is still continuing and since the LTTE have
increased their activities in Colombo.
proceedings before the Committee
10.1 The Committee has considered
the communication in the light of all the information made available
to it by the parties, in accordance with article 22, paragraph 4, of
10.3 The author has claimed
that he was arrested once in 1990 by the Indian armed forces, that his
brother became a member of the Tamil Tigers in 1994 and that for this
reason the army is looking for him and has searched his family's house
on several occasions. The Committee notes that the only substantiation
in support of the author's claim is a letter from the author's father,
in which it is stated that the army came to the house to look for him
and his brother. The Committee notes, however, that the letter does
not give any details about either the author's or his family's situation.
The author has not presented any other evidence in support of his claim.
He does not claim that he has been tortured in the past.
10.5 The Committee is aware
of the serious situation of human rights in Sri Lanka and notes with
concern the reports of torture in this country. The Committee recalls
however that, for the purpose of article 3 of the Convention, a foreseeable,
real and personal risk must exist of being tortured in the country to
which a person is returned. On the basis of the considerations above,
the Committee is of the opinion that such risk has not been established.