S.V. et al. (name withheld) [represented by counsel]
Committee against Torture, established
under article 17 of the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
on 15 May 2001,
concluded its consideration of communication No. 49/1996,
submitted to the Committee against Torture under article 22 of
the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment,
taken into account all information made available to it by
the author of the communication, his counsel and the State party,
its Views under article 22, paragraph 7, of the Convention.
authors of the communication are Mr. S.V., his wife and daughter,
citizens of Sri Lanka currently seeking refugee status in Canada.
They claim that forcible return to Sri Lanka would constitute
a violation of articles 3 and 16 of the Convention against Torture
by Canada. They are represented by counsel.
12 June 1996 the Committee forwarded the communication to the
State party for comments and requested it not to expel the authors
while their communication was under consideration by the Committee.
facts as submitted by the authors
author is a Tamil from the area of Jaffna in the north of Sri
Lanka. He and his wife have two children, an 8-year-old daughter
and a 2-year-old son who was born in Canada and is a Canadian
citizen. The authors claim that in the period from 1987 until
their departure from Sri Lanka in 1992 they, and especially the
author, suffered serious persecution from the Indian Peacekeeping
Force (IPKF), the Liberation Tigers of Tamil Elam (LTTE), the
Sri Lankan Army (SLA) and the Colombo police. The author was arrested
on several occasions and, in the course of at least two of them,
he was tortured by the army and the police.
author was a member of the Tamil United Liberation Front (TULF),
which advocated the establishment of an autonomous Tamil state
in Sri Lanka by peaceful means. In October 1987, a military conflict
broke out between LTTE and IPKF. The author and his wife were
forced to vacate their home, in Thirunelvely, Jaffna, to escape
the bombing. When they returned to their home, they found that
it had been occupied by IPKF members. When the author asked them
to leave, they refused and accused him of being a member of LTTE.
May 1988, the author was detained in a camp established on his
own property by the Eelam People's Revolutionary Liberation Front,
a militant Tamil group allied to IPKF. He was detained for 10
days, during which he was repeatedly assaulted and questioned
about possible connections to LTTE.
1990, LTTE took control of the Tamil region. The author's property
was appropriated by LTTE and he himself was threatened at gunpoint
when he demanded that they vacate the property. He was then forced
to abandon his home permanently and the family moved to Kaithady,
December 1990, while travelling from Colombo to Jaffna, the author
was detained by SLA in Vavuniya. He was questioned, accused of
being a member of LTTE and brutally assaulted. Three days later
he was beaten again in an attempt to extract a confession. His
head was banged repeatedly against a wall until he fell unconscious.
The authors claim that, as a result of this incident, the author
suffered brain damage that has gravely impaired his ability to
speak. Following this incident, the author went to Colombo seeking
March 1991, after the assassination of the Sri Lankan Deputy Minister
of Defence, the police began a round-up of all Tamil males in
Colombo. The author, who had been staying with his cousin in Colombo,
was arrested by four armed police officers on 4 March 1991. He
was interrogated about his presence in Colombo and accused of
being an LTTE member. He was repeatedly assaulted by the police
with hands and rifle butts and stayed in detention for two days.
He was released after the intervention of a lawyer retained by
his cousin. His cousin advised the author that he could no longer
reside with him as he feared further trouble with the police.
The author returned to Jaffna.
18 February 1992, LTTE attempted to force the author to join the
movement. When he refused, they ordered him to report to their
office the next day. Should he fail to report, he was told that
he would be considered an enemy of the Tamil people. The author
understood this statement as a threat to kill him and fled for
Colombo that evening.
3 March 1992, the lodge in which he was staying in Colombo was
raided by the police and the author, along with other Tamil males,
were arrested. He was taken to Wellawatte police station and questioned
about his reasons for being in Colombo and his connections with
LTTE. He was released the following day on condition that he report
weekly to the police and not change his address in Colombo.
the author feared that he could at any time be arrested, interrogated
and tortured on suspicion that he was a member of LTTE. He decided
that his safety was no longer assured anywhere in Sri Lanka. He
left for Canada on 13 March 1992 and arrived the following May.
(1) He claimed Convention refugee status on the basis of
persecution owing to his race, his political opinions and his
membership in a particular social group.
The author's wife states that she was visited on several occasions
in Jaffna by LTTE members looking for her husband. An LTTE member
demanded that she pay 200,000 rupees as punishment for her husband's
disobedience, giving her one month in which to come up with the
money. As a result she fled with her daughter to Colombo. In Colombo
she had to register with the police and her identity card was
confiscated. She was accused of being an LTTE supporter. In August
1992, after a police round-up of Tamils, she decided that there
was no safe place for herself and her daughter in Sri Lanka and
she left for Canada in September 1992. Upon her arrival she claimed
refugee status for herself and her daughter.
The Immigration and Refugee Board, after a hearing on 4 March
1993, found that the authors could not be accorded refugee status.
First, the extortion activities of LTTE did not constitute persecution
but rather harassment not causing undue hardship. Secondly, the
authors had in Colombo an internal flight alternative; the Board
found that there was no serious possibility of the author being
persecuted in Colombo and therefore, it was not unreasonable that
he could find refuge in that city.
By decision, dated 7 January 1994, the Federal Court Trial Division
dismissed the family's application for leave to apply for judicial
review in which they alleged errors of fact and of law in the
Refugee Board's decision.
On 28 January 1994, the authors applied for a review by Canadian
Immigration, under the Post-Determination Refugee Claimant in
Canada programme (PDRCC), of the decision not to grant the authors
refugee status. The purpose of PDRCC review is to identify individuals
who, although determined not to be Convention refugees, face an
objectively identifiable risk to life or inhumane treatment should
they be returned to their country of origin.
The authors' application for PDRCC review was rejected on 9 November
1995. It was the view of the PDRCC officer that, although there
were strong grounds for the authors' fearing to return to the
north of Sri Lanka, an internal flight alternative existed in
Colombo. He noted in particular that the assault by SLA which
caused the author's medical problems had occurred near Jaffna.
The arrests by the Colombo police were part of a pattern of general
harassment of Tamils by the police which he felt did not constitute
an "objectively identifiable risk", given that most detainees
were released within three days though some had been required
to pay bribes to obtain their release. He also indicated that
part of the authors' extended family lived in Colombo and could
facilitate their successful settlement in the city. In addition,
the medical report indicating that the author suffered post-traumatic
stress disorder which might be aggravated if he were to return
to Sri Lanka had only been made on the basis of one visit to a
doctor rather than in the context of ongoing treatment and was
not specific concerning the conditions that could trigger recurrence
of the trauma.
The authors made a further appeal on 13 May 1995 to the Minister
of Immigration based on the Humanitarian and Compassionate Grounds
procedure under section 114 (2) of the Immigration Act. On 9 December
1996 a negative decision was issued. An application for leave
to apply for judicial review against that decision was dismissed
by the Federal Court on 11 April 1997.
authors fear persecution and ill-treatment from the authorities
in Sri Lanka given their past experiences and their absence from
the country since 1992. They submit that in repatriating them
Canada would violate article 3 of the Convention against Torture.
authors provide medical evidence that the mental and physical
injuries suffered by the author while in detention have had drastic
long-term effects. He has difficulties in speaking and moving
his neck and suffers symptoms of post-traumatic stress disorder
(psychiatric medical reports are provided). They submit that,
given these afflictions, the author would be particularly vulnerable
to mistreatment and, further, would not receive the medical care
he needs in Sri Lanka.
authors further explain that their daughter, Nitarsha, is physically
and mentally handicapped, suffering from cerebral palsy, right
hemiparesis and an active seizure disorder. She requires special
care, treatment and education. She would not receive those in
authors submit that, given these medical conditions, the deportation
of the family would amount to inhuman and degrading treatment
on the part of the Canadian authorities in violation of article
16 of the Convention against Torture.
by the State party on admissibility
a note dated 9 June 1997 the State party contested the admissibility
of the communication. It indicated that the authors did not seek
judicial review of the decision of PDRCC and that this remedy
might still be available if time for filing were extended by the
Court. Moreover, if the authors were to succeed in an application
for leave to apply for judicial review, the decision of the Federal
Court Trial Division on the judicial review application could
be further appealed to the Federal Court of Appeal, should the
judge of the Trial Division certify that the case raises a serious
question of general importance. Moreover, a decision of the Federal
Court of Appeal could be appealed, with leave, to the Supreme
Court of Canada.
judicial review, the authors would be entitled to raise arguments
under the Canadian Charter of Rights and Freedoms. In this regard,
it is relevant to note that in the context of extradition the
Supreme Court of Canada has held that section 7 of the Charter
is violated by returning someone to a country in circumstances
that would "shock the conscience of Canadians".
comments on admissibility
his reply, dated 28 April 1998, counsel indicated that the authors
had applied for judicial review of the decision adopted by the
Immigration and Refugee Board. However, leave to be heard on this
question was refused by the Federal Court. There is no possibility
of appealing that decision. It is the final step in the refugee
determination procedure in which there is a judicial or quasi-judicial
process that looks into the substance of the matter; all subsequent
judicial controls look only into the procedures.
post-determination review in November 1995 was negative. This
procedure has been criticised by refugees, lawyers and church
groups because it never results in a positive decision.
only unresolved issue that is addressed by the State party is
whether the refusal of PDRCC should have occasioned a request
for judicial review by the Federal Court and whether this recourse
can still be resorted to. Counsel pointed out that judicial review
of the PDRCC procedure was not sought because of the lack of financial
resources of the applicants and the futility of it. The jurisprudence
of the Federal Court clearly establishes that the decision of
the post-determination claims officer is an entirely discretionary
decision and that the Court is only concerned with the procedural
of a request for judicial review, an appeal on humanitarian grounds
covering the same questions in law was made. The issue of the
post-traumatic stress was fully presented, as was the danger of
return. The torture was fully documented and the immigration officer
judged the story to be credible but refused to grant asylum because
of the internal flight alternative.
refusal of the appeal on humanitarian grounds was challenged in
the Federal Court and leave was denied. According to the Court's
constant jurisprudence, decisions like the one under review are
discretionary and, therefore, the Court does not intervene on
the substance of the cases, only on whether the procedures have
been fair. All legal arguments were considered and disposed of
by the Federal Court.
stated that it is objectively impossible to ask the Federal Court
to litigate again on exactly the same questions. The Court would
clearly consider that an abuse of the process.
Canadian authorities concluded that the authors were at risk in
the Jaffna peninsula, but that Colombo could be a safe haven for
them. Counsel noted, however, that the author was severely mistreated
by the police in Colombo in March 1991, that he was arrested arbitrarily
in March 1992 and that there is a consistent pattern of arbitrary
arrests, detention, and sometimes disappearances and extra-judicial
executions of Tamils in Colombo.
conclusion of the immigration officer in the humanitarian and
compassionate review procedure was that risks were involved. He
based his conclusion on the report of one of the doctors who examined
the author according to which the latter suffers from post-traumatic
stress disorder and his symptoms have increased as he is worried
about being returned to Sri Lanka. In the doctor's opinion, the
author would have great difficulty functioning in that country
because of his neurological difficulties. In spite of this, application
was refused on the grounds of "medical inadmissibility" that the
authors had not shown that they had established themselves economically
in Canada. The family has been living on social assistance since
their arrival in Canada and, given their circumstances, they might
become a chronic welfare case.
the medical report referred to by the immigration officer the
doctor also indicates that some Tamil refugees he had examined
stated that they were at greater risk in Sri Lanka if they had
scars or signs of injury, as these could be regarded by the authorities
as an indication that their injuries occurred while fighting with
LTTE. The author's neurological limitations could be regarded
as having been caused in this manner. If he were questioned by
the authorities in Sri Lanka he would not be able to express himself
verbally and someone who was unaware of his neurological limitations
could regard this as being obstructive or antagonistic.
Counsel argued that neither the Government of Canada nor the Office
of the United Nations High Commissioner for Refugees (UNHCR) evaluated
the objective risk for the individuals in this particular case
but only considered the question of deportations to Sri Lanka
Counsel contended that returning a person who suffers from serious
physical and mental damage as a result of human rights abuses
to the country where he was subjected to those abuses constitutes
inhuman treatment. The lack of medical care or proper psychiatric
assistance in Sri Lanka could per se constitute a violation of
article 16 of the Convention. Counsel, however, raised this as
a circumstance aggravating the inhuman treatment involved in the
decision on admissibility
its twentieth session, the Committee considered the admissibility
of the communication. The Committee was of the opinion that once
the Humanitarian and Compassionate Grounds procedure, including
a leave application addressed to the Federal Court, was completed,
all available domestic remedies had been exhausted. Accordingly,
article 22, paragraph 5 (b), did not prevent it from considering
the communication. The Committee considered that there was no
other obstacle to the admissibility of the communication. It therefore
decided that the communication was admissible.
of the State party on the merits of the communication
to the State party, the facts as presented by the authors were
examined by a competent and independent domestic tribunal following
a fair process, in accordance with Canada's refugee determination
procedure. The State party also notes that the authors were represented
by counsel during the course of the proceedings, interpretation
was provided and the author's viva voce testimony was elicited.
was the view of the Refugee Board that the central issue with
respect to the author's situation is that he was released by the
police. This clearly indicates that the author was not considered
an LTTE member or sympathizer by the very authorities he fears.
The Board stated in its reasons that it considered the authors'
allegations concerning the beatings received at the hands of the
Sri Lankan army and the medical reports he filed with the Board.
However, the Board noted that the definition of "Convention refugee"
is forward-looking and past experiences, though relevant, are
not determinative in the assessment. It states that this is also
true of article 3 of the Convention against Torture.
the author's wife and child, the Board determined that they were
not Convention refugees as they did not have problems when they
were in Colombo. Furthermore, as their claims were joined with
and dependent upon the author's claim, the Board determined that
they were not Convention refugees.
respect to the authors' application to PDRCC, the State party
explains that, in most cases, the Convention refugee definition
will overlap with article 3 of the Convention against Torture.
In circumstances where there is no overlap, officials conducting
the post-determination review must give consideration to article
3 of the Convention. In accordance with the criteria for these
reviews, the post-determination officer reviewed the authors'
written submissions prepared on their behalf by their lawyer,
the documentation they attached and documentation on the situation
in Sri Lanka. The submissions included evidence not produced at
the time of the hearing before the Refugee Board, notably a medical
report and a 1994 report by Amnesty International. (2)
the humanitarian and compassionate review of the case under section
114 (2) of the Immigration Act, the State party contends that
the reviewing officer took into account all the submissions of
the applicants and a wide range of circumstances, including the
risk of unduly harsh or inhumane treatment in the country of return,
current conditions in the country and new developments in Sri
Lanka since the hearing before the Refugee Board and the PDRCC
review. The immigration officer indicated that "risks were involved"
(3) but did not confirm that torture was one of them. The
risk assessment is not limited to the risk of torture.(4)
to the State party, the above-mentioned national proceedings demonstrate
no manifest error or unreasonableness and were not tainted by
abuses of process, bad faith, manifest bias or serious irregularities.
It also states that it is not for the Committee to evaluate the
facts and evidence of a particular case.
the State party's view, the communication reveals that the authors
of the communication left their country because they feared LTTE
or because they feared being caught between LTTE and the governmental
authorities. Such fear does not suffice to substantiate a communication
under the Convention. The authors also state in their submission
- and this is confirmed in the medical report - that they feared
torture at the hands of LTTE if they are returned to Sri Lanka.
The author himself claimed that it was the order to join LTTE
that prompted him to leave for Colombo in 1992. Consequently,
the State party argues that, in the north of the country, the
authors do not fear the Sri Lankan authorities but LTTE.
State party submits that acts committed by LTTE do not fall under
the competence of the Committee since the definition of "torture"
in the Convention refers expressly to acts committed "by or at
the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity". Acts
committed by LTTE cannot be attributed to the State and therefore
are not covered by the Convention.
to the alleged risk of torture at the hands of the State, the
State party submits that the authors of the communication have
not established substantial grounds to believe that, if the authors
were deported to Sri Lanka, there is a personal, present or foreseeable
risk of torture. It states that the authorities are not interested
in the authors and makes the following points in this regard:
Although the author
claimed, before the Refugee Board, to be an ardent supporter
of TULF, he never indicated that he was a member of this movement
or had been involved in political activities. In any event,
TULF is now represented in Parliament and supports peace initiatives
taken by the Government;
In his refugee
application, the author claimed that he chose Canada because
he was unable to go anywhere else. However, his Personal History
Form, completed by him on his arrival into Canada, shows that
he travelled to many different countries and for long periods,
returning voluntarily to his country each time, even after
the incidents in which he alleges that he had problems with
the authorities. In particular, almost one year after his
alleged torture by the army in December 1990, the author left
his country for Singapore and returned voluntarily to Sri
The author travelled
many times to Colombo and had no problems with the authorities
except in March 1991 and March 1992. This establishes that
the author is not suspected of complicity with LTTE;
While the author
claimed that he was tortured by the authorities when arrested
in December 1990, March 1991 and March 1992 he has not provided
any evidence to indicate that any pain suffered in March 1991
amounted to torture as defined by the Convention. Also, when
last arrested in 1992, the event which is alleged to have
prompted him to leave the country, the author was not beaten
and was released the next day with the only obligation being
to report to the authorities once a week;
As to the author's
physical condition, his wife stated that, apart from a longer
period of questioning because of his speech difficulties,
her husband had no other problem with the police when he was
in Colombo. The author himself stated that the police were
able to understand him when he spoke with them;
As to the argument
that the author would face torture because of his speech difficulties,
the State party argues that this is mere conjecture and is
based on the medical report which states that "(s)ome Tamil
refugees, whom I have examined, have indicated that they believe
that they are at risk in Sri Lanka if they have scars or signs
of injury as these could be regarded by the authorities as
an indication that their injuries had occurred while fighting
with the LTTE". Such beliefs cannot constitute substantial
grounds required by article 3 of the Convention;
The author's wife
has not herself been arrested by the authorities and she had
no problem with the police in Sri Lanka. Therefore, there
is a total lack of evidence that she was accused or suspected
of being an LTTE supporter;
Contrary to the
author's wife's claim, there is no evidence that her identity
card was taken away by the Sri Lanka authorities. In any event,
she was not arrested, detained, accused or asked to make any
subsequent reports to the police;
In 1991, the author,
and in 1992, his wife, legally obtained passports in Sri Lanka;
The authors have
not claimed that persons in their immediate circle, notably
family members, were arrested or tortured.
The State party refers to decisions of the Committee where the
authors have failed to show that the danger is personal and present.
(5) The State party also refers to a case decided by the
European Court of Human Rights involving the removal of Sri Lankans.
In that case the allegation of a violation of article 3 of the
European Convention on Human Rights was dismissed as the plaintiffs
did not establish that their personal position was any worse than
that of other members of the Tamil community who were returning
to their country. The mere possibility of ill-treatment was not
in itself sufficient to foresee that they would be subjected to
ill-treatment following their return. (6)
The State party submits that the communication rests mainly on
the general situation of human rights in Sri Lanka. The authors
do not link that general situation to their personal situation.
As to the general situation in Sri Lanka, the report of the Working
Group on Enforced or Involuntary Disappearances (1998) indicates
that persons most often reported detained and missing were young
Tamil men accused or suspected of belonging to, collaborating
with, aiding or sympathizing with LTTE. The State party argues
that the authors do not fall into this category.
Furthermore, it states that the information provided by UNHCR
indicates that torture and other forms of mistreatment are not
practised by the police and security authorities in Colombo. The
United States Department of State Country Report for 1998 (dated
February 1999) indicates that there were no reports of disappearances
in Colombo and Jaffna. In March 1997, UNHCR reported that rejected
asylum-seekers who arrived with national travel documents should
have no problems when arriving at Colombo airport.
Moreover, the State party argues that in its assessment of the
communication, the Committee should take into consideration the
different measures taken by the Sri Lankan authorities to investigate
and prevent acts of torture, as well as remedies available to
the authors. In this context, the State party notes that, inter
alia, all arrests and detentions must be reported to the Human
Rights Commission (established in 1997) within 48 hours, the reports
of three presidential commissions of inquiry into past disappearances
have been made public, investigations into 485 of the 3,861 cases
of alleged human rights violations have been completed and 150
alleged perpetrators charged in the High Court, and a 24-hour
service to deal with public complaints of instances of harassment
by elements in the security forces has been established by the
7.14 With respect to the alleged violation of article 16 of the
Convention, the State party argues that this article obliges States
parties to apply the obligations contained in articles 10 to 13
to acts of cruel, inhuman or degrading treatment or punishment.
As article 16 does not mention article 3, it does not create an
obligation not to remove someone from a State in the circumstances
described in that article.. (7)
The State party is of the view that should article 16 of the Convention
be found to apply where it is alleged that removal per se constitutes
cruel, inhuman or degrading treatment or punishment, it should
do so only in very exceptional circumstances. It is submitted
that the aggravation of the author's state of health possibly
caused by his deportation would not amount to the type of cruel,
inhuman or degrading treatment envisaged by article 16 of the
Convention and attributable to the State party; reference is made
in this regard to the Committee's decision in G.R.B. v. Sweden.
Furthermore, article 16 of the Convention obliges States to prevent
the proscribed treatment; it does not create a positive duty to
provide medical care should the authors allegedly not receive
comparable medical care in their home country. Further, it is
submitted that there is no evidence that the required medical
care in Sri Lanka is inadequate. Finally, article 16, paragraph
2, indicates that the provisions of the Convention are without
prejudice to the provisions of national law which relate to expulsion.
comments on the merits
contests the State party's assertion that this case was examined
by "a competent and independent domestic tribunal". He claims
that the Immigration and Refugee Board failed to appreciate both
the facts of the case and the applicable law.
states that the most recent evidence available from Sri Lanka
shows a situation of terrible human rights abuses in line with
those described in article 3, paragraph 2, of the Convention against
Torture. There have been several suicide bomb attacks in Colombo
and other areas of the country. There has also been a major LTTE
offensive in the north. There are reports of large-scale round-ups
of Tamils in the centre and the capital of the country, as well
as a serious resurgence of forced disappearances. (8)
refers to the Committee's general comment on article 3 of the
Convention against Torture and argues that article 3 applies to
the author's case as follows.
There is a situation in Sri Lanka of a "consistent pattern of
gross, flagrant or mass violations of human rights". The existence
of torture with impunity, on a massive and systematic scale, is
clear from any reading of the situation;
The author has been mistreated in the past by agents of the Sri
Lankan State. He has brain damage because of severe mistreatment
by soldiers of the Sri Lankan army. He has been detained on more
than one occasion in Colombo and mistreated by the police. This
happened shortly before he left Colombo;
There is independent medical and psychiatric evidence from doctors
and psychiatrists associated with the Canadian Centre for Victims
of Torture that establishes clearly that he is a torture victim.
The torture has had a long-lasting effect on the author and his
(d) There is no substantive change in the situation in Sri Lanka
since the author left the country. The situation at the time of
counsel's submission is said to have been very serious and dangerous.
A high level of repression and the legal arsenal that permits
almost total impunity are firmly in place;
The author was a supporter of the main Tamil party, TULF. He is
from the north and he has suffered torture in the past. His situation
as a torture victim in the past puts him greatly at risk today;
The author is highly credible, with strong support from serious
organizations in Canada. The original decision did not find against
him on the issue of credibility;
There is nothing incoherent or implausible about what the author
says. His personal security and his life are at risk in Sri Lanka
also contests the assertion that the authors' main fear is of
the Tamil Tigers. Counsel contends that the jurisprudence cited
by the Canadian authorities appears to relate to cases that were
not substantiated or where the author in question was not previously
subjected to torture or directly targeted.
states that it is untrue to say that there is no longer torture
in Colombo. All of the international human rights reports that
are available state the contrary. Even the Federal Court of Canada
recognized, in its decision granting the stay, that there is a
risk of irreparable harm for the author if he were sent back,
as did the immigration agent examining his case.
and proceedings before the Committee
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 the Convention.
issue before the Committee is whether or not the forced return
of the authors to Sri Lanka would violate the obligation of Canada
under article 3 of the Convention not to expel a person to another
State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.
reaching this decision, the Committee must take into account all
relevant considerations, pursuant to article 3, paragraph 2, of
the Convention, 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
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
a sufficient ground for determining that a particular person would
be in danger of being subjected to torture upon his return to
that country; additional grounds must exist to show that the individual
concerned 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 considered to be in danger of
being subjected to torture in his or her specific circumstances.
9.4 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).
The Committee recalls that the State party's obligation to refrain
from forcibly returning 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 is directly linked to
the definition of torture as found in article 1 of the Convention.
For the purposes of the Convention, according to article 1, "the
term 'torture' means any act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted on a person
for such purposes as obtaining from him or a third person information
or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted
by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity".
The Committee considers that the issue of whether the State party
has an obligation to refrain from expelling a person who might
risk pain or suffering inflicted by a non-governmental entity,
without the consent or acquiescence of the Government, falls outside
the scope of article 3 of the Convention. Consequently, the issue,
on which the authors base part of their claim that they would
suffer torture by LTTE or other non-governmental entities on return
to Sri Lanka, cannot be considered by the Committee.
respect to the possibility of the author suffering torture at
the hands of the State on return to Sri Lanka, the Committee notes
the author's allegations that he was tortured by the Sri Lankan
army in December 1990 and that this treatment, which left him
disabled, amounted to torture in terms of article 3 of the Convention.
It also notes the allegations that he was maltreated by the police
in Colombo in 1991. However, the Committee also notes the State
party's contention, unchallenged by the author, that he left Sri
Lanka regularly and always returned, even after the incident in
December 1990. The Committee notes that with respect to the incident
in March 1992, which according to the author was the reason for
his departure, he was not maltreated and was released by the authorities.
Furthermore, the author has not indicated that since that period
he has been sought by the authorities. In fact, the author has
not alleged to have been engaged in political or other activity
within or outside the State, or alleged any other circumstance
which would appear to make him particularly vulnerable to the
risk of being placed in danger of torture. For the above-mentioned
reasons, the Committee finds that the author 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.
the author's wife and their daughter have never been arrested
or subjected to torture. The obligation to register at the police
station at Colombo and the allegation, challenged by the State
party, that the police took her identity card are not substantial
grounds for believing that they would be in danger of being subjected
to torture were they to be returned to Sri Lanka and that such
danger is personal and present.
9.8 The Committee recalls that, for the purposes of article 3
of the Convention, the individual concerned must face a foreseeable,
real and personal risk of being tortured in the country to which
he or she is returned. In light of the foregoing, the Committee
deems that such a risk has not been established by the authors.
Moreover, the Committee observes that article 3 applies only to
situations of torture as defined in article 1 of the Convention.
regard to the authors' allegation that the decision to expel them
would in itself constitute an act of cruel, inhuman or degrading
treatment or punishment in contravention of article 16 of the
Convention, the Committee notes that the authors have not submitted
sufficient evidence in substantiation of this claim.
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 to Sri Lanka by the State party would not constitute a
breach of article 3 or article 16 of the Convention.
to the State party, the author went first to Malaysia, where he
stayed until 16 May 1992, then to Singapore on 16 May 1992 and
finally arrived in Canada on 19 May 1992. The author did not claim
protection in either of the first two countries.
State party provides an explanation of this procedure in its PDRCC
State party does not say what the specific risks were in relation
to this case.
State party has provided the text "Immigration Applications in
Canada made on Humanitarian or Compassionate (H&C) Grounds",
which describes this procedure in detail.
v. The Netherlands (036/1995), J.U.A. v. Switzerland
(100/1997), H.D. v. Switzerland (112/1998), S.M.R. and
M.M.R. v. Switzerland (103/1998).
State party does not provide the name or the registration number
of this case.
préparatoires of the Convention
of Amnesty International and other organizations are provided
by counsel in support of this argument.