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
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
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:
- 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.
- 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.
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
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
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.
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.