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FIFTH
SECTION
CASE OF
N.S. v. DENMARK
(Application
no. 58359/08)
JUDGMENT
STRASBOURG
20 January
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of N.S. v. Denmark,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Renate
Jaeger,
President,
Peer
Lorenzen,
Karel
Jungwiert,
Rait
Maruste,
Mark
Villiger,
Isabelle
Berro-Lefèvre,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 14 December 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 58359/08) against the Kingdom
of Denmark lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Sri-Lankan national, N.S. (“the
applicant”), on 25 November 2008. The
acting President of the Chamber decided to grant the applicants
anonymity (Rule 47 § 3 of the Rules of Court).
- The
applicant was represented by Hans Boserup, a lawyer practising in
Sønderborg. The Danish Government (“the Government”)
were represented by their Agent, Mr Thomas Winkler, of the Ministry
of Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen,
of the Ministry of Justice.
3. The
applicant alleged in particular that an implementation of the
deportation order to return him to Sri Lanka would be in violation of
Article 3 of the Convention.
- On
11 December 2008, the acting President of the Chamber decided to
apply Rule 39 of the Rules of Court, indicating to the Government
that it was in the interests of the parties and the proper conduct of
the proceedings that the applicant should not be expelled to Sri
Lanka pending the Court’s decision. On 6 January 2009 the
acting President decided to give notice of the application to the
Government and granted it priority under Rule 41 of the Rules of
Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s domestic proceedings
- The
applicant was born on 21 November 1967 in Sri Lanka. He is of
Tamil ethnicity.
- Having
been granted family reunification on 3 December 1997, by virtue of
the former section 9, subsection 1(2), of the Aliens Act
(Udlændingeloven), on 13 December 1997, with a valid
passport and visa, the applicant joined his Sri Lankan wife in
Denmark. It appears that she had left Sri Lanka in 1992 and stayed in
India before, at some unknown time, she was granted asylum in
Denmark, apparently due to her connections with the LTTE.
- Three
children were born to the couple in 2000, 2002 and 2005.
- By
a judgment of 4 July 2006 by the City Court in Tønder (Retten
i Tønder), upheld on appeal on 19 September 2006 by the
High Court of Western Denmark (Vestre Landsret), the applicant
was convicted of the sexual abuse of a girl who was less than twelve
years old. He was sentenced to three years and three months’
imprisonment and expelled with a prohibition on returning.
- The
applicant did not request leave to appeal against the judgment to the
Supreme Court (Højesteret).
- The
applicant finished serving his prison sentence on 20 March 2009.
- In
the meantime, on 14 June 2007 the applicant requested asylum under
section 7 of the Aliens Act and maintained in support thereof, inter
alia, that his three siblings, two of whom were dead, had been
members of the Tamil Tigers (LTTE). He had not been a member
of any organisation in Sri Lanka.
- According
to an interview report of 11 December 2007 prepared by the
Immigration Service, the applicant added that until he turned 30
years of age, he had been a fisherman. Then he had married and been
reunited with his family in Denmark in 1997. When the applicant went
to school, persons from the LTTE had come up and asked him if he
could dig holes, move things and carry out various jobs. The
applicant took no part in action, exercises or military training. He
assisted the LTTE on a full-time basis for three years. During this
period he stayed with the LTTE all the time. Thereafter he moved back
to his family without telling the LTTE. Confronted with the fact that
he had previously stated that he had no involvement with the LTTE, he
maintained that his statement had been translated incorrectly. He had
assisted the LTTE from 1990 to 1995 but had not been a member. He did
not recall whether he had been wanted by the Sri Lankan
authorities but he had been arrested by them ten to fifteen times.
When asked why he had not previously mentioned the arrests, he stated
that most of the arrests had been of only a few hours’ duration
but that the last one had lasted some months. It was in 1991 when he
was arrested in connection with the mass arrest. He remembered being
released after six months as a result of a peace agreement but his
memory was not very good. Whenever he had been arrested the
authorities asked him whether he was working for the LTTE. He had
denied this, although this was the period during which he had worked
for the organisation. Confronted with the fact that he had previously
stated that he would not risk any harm upon return to Sri Lanka as he
was neither wanted nor persecuted, the applicant submitted that this
must have been a misunderstanding.
- On
21 December 2007 the applicant’s application for asylum was
refused by the Immigration Service (Udlændingeservice),
finding that he lacked credibility and that there was no
substantiated risk that he would be subjected to treatment contrary
to Article 3 of the Convention upon return.
- The
applicant appealed to the Refugee Appeals Board (Flygtningenævnet)
before which, during an oral hearing held on 20 May 2008, he
explained for example that the LTTE had approached him numerous times
between 1985 and 1997 to ask him to work for them, which he did, but
he had not been a member of the LTTE. The last time he assisted them
was in January 1997. The applicant left in December 1997.
- By
decision of 13 June 2008 the Refugee Appeals Board refused to grant
the applicant asylum. It noted that the applicant had expanded his
motive for requesting asylum and had submitted various divergent
explanations. Moreover, even disregarding the fact that the applicant
had made various unclear statements about the dates, number and
duration of his detention by the authorities, it could be considered
a fact that he was last detained in 1991, which was five or six years
before his departure, in connection with a mass arrest; that he was
released in connection with a peace agreement; that he was never
charged or sentenced; and that he had been able to leave Sri Lanka in
1997 on a valid passport without any problems. The Refugee Appeals
Board did not find that the applicant had substantiated being at risk
of persecution by the Sri Lankan authorities or the LTTE upon return.
Finally, it observed that the general situation in Sri Lanka for
Tamils coming from the north and east of the country could not alone
justify the granting of asylum, and that the applicant’s case
had been assessed on its concrete and particular circumstances.
B. Subsequent events before the Court and domestic
proceedings
- On 11 December 2008, upon the applicant’s
request, the Court of Human Rights decided to apply Rule 39 of
the Rules of Court, indicating to the Government that it was in the
interests of the parties and the proper conduct of the proceedings
that the applicant should not be expelled to Sri Lanka pending the
Court’s decision.
- On
2 March 2009 the Refugee Appeals Board refused the applicant’s
request to reopen the case.
- On
16 June 2009 the Refugee Appeals Board decided to suspend the
examination of asylum cases concerning Tamils from northern Sri
Lanka, including the applicant’s case.
- On
16 December 2009, on the basis of the most recent background
information concerning Sri Lanka including, inter alia, a
Memorandum of 26 October 2009 prepared by the Ministry of Foreign
Affairs, the Refugee Appeals Board decided to review the suspended
cases, including the applicant’s case.
- On
16 March 2010 the Refugee Appeals Board refused to reopen the
applicant’s case as it found that the most recent general
background information would not lead to a revised assessment of the
case. More specifically in its letter to the applicant’s
representative it stated as follows:
... In its decision of 13 June 2008, the Refugee Appeals
Board found ... The Refugee Appeals Board still finds that your
client’s fear of being forcibly recruited by the LTTE or of
being subjected to outrages by the LTTE as a result of having fled
from the LTTE does not warrant a residence permit under section 7 of
the Aliens Act. In this connection, the Refugee Appeals Board
emphasises that your client’s statements about his alleged
connection with the LTTE were extended during the asylum proceedings
and were diverging in essential areas. In this connection, the
Refugee Appeals Board also refers to the fact that the Sri Lankan
military forces defeated the LTTE in May 2009. Moreover, the Refugee
Appeals Board refers to the background information available to the
Board from which it appears that it is hardly likely that former
low-ranking members of the LTTE or persons who have previously
supported the LTTE will risk reprisals from the LTTE, see United
Kingdom: Home Office, Operational Guidance Note, Sri Lanka, August
2009. Regardless of whether your client’s information about his
previous activities for the LTTE is considered a fact, the Refugee
Appeals Board stills find that your client would not risk persecution
or being subjected to outrages as covered by section 7 of the Aliens
Act by the Sri Lankan authorities if returned to Sri Lanka, including
in connection with his arrival at Colombo airport. The Refugee
Appeals Board emphasizes that from his detention in 1991, where his
photo was taken, and until his departure in 1997 your client has not
been detained or had his picture or fingerprint taken or in any other
way been the object of interest from the Sri Lankan authorities. The
authorities have thus not carried out any acts aimed at your client
that indicated that he was suspected of being a member of the LTTE.
In this connection, the Board also refers to the fact that your
client departed lawfully from Sri Lanka with his own Sri Lankan
national passport for the purpose of family reunification with his
spouse. Similarly, the Refugee Appeals Board refers to the background
material available to the Board, according to which persons who have
previously supported the LTTE on a lower level are generally not of
interest to the authorities, see United Kingdom: Home Office,
Operational Guidance Note, Sri Lanka, August 2009, and see United
Kingdom: Home Office, Report of Information Gathering Visit to
Colombo, Sri Lanka 23-29 August 2009. Against that background the
Refugee Appeals Board also finds that the fact that one or more of
your client’s siblings have been members of or active for the
LTTE cannot warrant a residence permit under section 7 of the Aliens
Act, according to the background information now available. The fact
that as an ethnic Tamil from northern Sri Lanka your client may risk
being questioned and investigated by the authorities on entry into
the country cannot lead to a revised assessment of the case under
asylum law. In this assessment, consideration has been given to the
background information available to the Board, according to which the
individuals at particular risk of being detained and investigated
upon entry in Colombo are young Tamils, men in particular, from
northern and eastern Sri Lanka, those without identification or
residence in Colombo, and those recently returned from the West, see
United Kingdom: Home Office, Report of Information Gathering Visit to
Colombo, Sri Lanka 23 29 August 2009. In this
connection the Board refers to its finding that it has not been
rendered probable that your client would be an object of particular
interest to the Sri Lankan authorities. As in its decision of 13 June
2008, the Refugee Appeals Board still finds that the general
situation in Sri Lanka is not of such nature as to warrant in itself
the grant of a residence permit under section 7 of the Aliens Act.
The Board observes in that connection that it is a condition for a
residence permit under section 7 of the Aliens Act that, upon a
specific, individual assessment, an alien is deemed at risk of
persecution or outrages. The authority of the Refugee Appeals Board
is restricted to deciding asylum-relevant issues, and it is thus
outside the Board’s authority to determine whether an alien who
does not meet the conditions of section 7 of the Aliens Act may be
issued with a residence permit for other reasons of a more
humanitarian nature. Against that background and in accordance with
the Board’s decision of 13 June 2008, the Refugee Appeals Board
still finds that it has not been rendered probable that, in case of
return to Sri Lanka, your client would be at concrete and individual
risk of persecution as covered by section 7(1) of the Aliens Act, or
that your client would be at a real risk of outrages as covered by
section 7(2) of the Aliens Act. It should be noted that your client’s
time-limit for departure is still suspended until further notice on
the basis of the request of 11 December 2008 from the European Court
of Human Rights. If the basis for your client’s lawful stay in
Denmark lapses, your client must leave the country immediately, see
section 33 of the Aliens Act. As appears from the decision of the
Refugee Appeals Board of 13 June 2008, your client may be forcibly
returned to Sri Lanka if he does not leave voluntarily, see section
32a, cf. section 31, of the Aliens Act.
- On
18 March 2010, the applicant’s representative brought
proceedings against the Refugee Appeals Board before the City Court
(Retten i Sønderborg) claiming that the Board’s
decision of 16 March 2010 should be annulled. It appears that the
proceedings are still pending.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum
proceedings in Denmark
22. By
virtue of section 7 of the Aliens Act (Udlændingeloven),
asylum is granted to aliens who satisfy the conditions of the Geneva
Convention. Applications for asylum are determined in the first
instance by the former Aliens Authorities (now called the Immigration
Service) and in the second instance by the Refugee Appeal Board.
- Pursuant
to section 56, subsection 8, of the Aliens Act, decisions by the
Refugee Board are final, which means that there is no avenue for
appeal against the Board’s decisions. Aliens may, however, by
virtue of Article 63 of the Danish Constitution (Grundloven)
bring an appeal before the ordinary courts, which have authority to
adjudge on any matter concerning the limits to the competence of a
public authority.
- By
virtue of section 54, subsection 1, second sentence, of the Aliens
Act the Refugee Appeals Board itself sees that all facts of a case
are brought out and decides on examination of the alien and witnesses
and procuring of other evidence. Consequently, the Board is
responsible not only for bringing out information on all the specific
circumstances of the case, but also for providing the requisite
background information, including information on the situation in the
asylum-seeker’s country of origin or first country of asylum.
For this purpose, the Refugee Appeals Board has a comprehensive
collection of general background material on the situation in the
countries from which Denmark receives asylum seekers. The
material is updated and supplemented on a continuous basis. The
background material of the Refugee Appeals Board is obtained from
various authorities, in particular the Danish Ministry of Foreign
Affairs and the Danish Immigration Service. In addition, background
material is procured from various organisations, including the Danish
Refugee Council, Amnesty International and other international human
rights organisations and the UNHCR. Also included are the annual
reports of the US State Department (Country Reports on Human Rights
Practices) on the human rights situation in a large number of
countries, reports from the British Home Office, reports from the
documentation centre of the Canadian Refugee Appeals Board, reports
from the Swedish Ministry for Foreign Affairs, reports from EURASIL
(European Union Network for Asylum Practitioners), reports from the
authorities of other countries and to some extent articles from
identifiable (international) journals. Moreover, the Board may
request the Danish Ministry of Foreign Affairs to issue an opinion on
whether it can confirm information from a background memorandum
drafted in general terms. The Refugee Appeals Board also retrieves
some of its background material from the Internet. Internet access
also enables the Board to obtain more specific information in
relation to special problems in individual cases.
- Usually,
the Refugee Appeals Board assigns counsel to the applicant. Board
hearings are oral and the applicant is allowed to make a statement
and answer questions. The Board decision will normally be served on
the applicant immediately after the Board hearing, and at the same
time the Chairman will briefly explain the reason for the decision
made.
III. RELEVANT INFORMATION ABOUT SRI LANKA
Events
occurring after the cessation of hostilities in May 2009
- Extensive
information about Sri Lanka can be found in NA. v. the United
Kingdom, no. 25904/07, §§
53-83. The information set out below concerns events occurring after
the delivery of the said judgment on 17 July 2008 and, in
particular, after the cessation of hostilities in May 2009.
- Fighting
between the Sri Lankan army and the LTTE intensified in early 2009,
with the army taking a number of rebel strongholds in the north and
east of the country. On 19 May 2009, in an address to the country’s
parliament, the President of Sri Lanka announced the end of
hostilities and the death of the leader of the LTTE, Velupillai
Prabhakaran. It was also reported that most,
if not all, of the LTTE’s leadership had been killed.
- The
previous day, the United Nations Office for the Coordination of
Humanitarian Affairs had estimated that around 220,000 people had
already reached internally displaced persons’ camps, including
20,000 in the last two or three days. In addition, it was believed
that another 40,000-60,000 people were on their way to the camps
through the crossing point at Omanthai, in the northern district of
Vavuniya.
- In
July 2009, the South Asia Terrorism Portal reported that the number
of killings in Sri Lanka in the previous three years (including
deaths of civilians, security forces and members of the LTTE) was:
4,126 in 2006; 4,377 in 2007; 11,144 in 2008 and 15,549 between 1
January 2009 and 15 June 2009. An estimated 75-80,000 people
were reported to have been killed in total over the course of the 26
year conflict.
30. In
July 2009, in a “Note
on the Applicability of the 2009 Sri Lanka Guidelines”,
the United Nations High Commissioner for Refugees (UNHCR) observed
that:
“Notwithstanding the cessation of the hostilities,
the current protection and humanitarian environment in Sri Lanka
remains extremely challenging. In the North, nearly the entire
population from the territory formerly held by the LTTE in the North
(285,000 Tamils) has been confined to heavily militarized camps in
the Northern region. Although the government has gradually reduced
the military presence in the camps and has pledged to start the
progressive return to their villages of origin of the majority of
those in the camps, it is clear that this may take a considerable
amount of time. The lack of freedom of movement remains the
overriding concern for this population restricting its ability to
reunite with family members outside the camps, access employment,
attend regular schools, and ultimately choose their place of
residence.”
- A
Human Rights Watch [HRW] press release, dated 28 July 2009, reported
that:
“The government has effectively sealed off the
detention camps from outside scrutiny. Human rights organizations,
journalists, and other independent observers are not allowed inside,
and humanitarian organizations with access have been forced to sign a
statement that they will not disclose information about the
conditions in the camps without government permission. On several
occasions, the government expelled foreign journalists and aid
workers who had collected and publicized information about camp
conditions, or did not renew their visas.”
- A
further Human Rights Watch press release dated 26 August 2009 set
out concerns that more than 260,000 Tamil civilians remained in
detention camps without the freedom to leave.
- In
August 2009, the first post-war local elections were held in Northern
Sri Lanka. The British Broadcasting Corporation reported that voter
turn-out was low due to the number of people who were still
displaced. The governing party, the United People’s Freedom
Alliance, took the majority of seats in the biggest city in the
region, Jaffna. However, the Tamil National Alliance, a party
sympathetic to the defeated LTTE, took the majority of seats in
Vavuniya, the other town where polling took place.
- On
7 September 2009, James
Elder, the official spokesman for the United Nations Children’s
Fund in Sri Lanka was ordered to leave Sri Lanka because of
adverse remarks that he had made to the media about the plight of
Tamils in the government-run camps.
- On
10 September 2009 the Sri Lankan Official Government News Portal
announced that the motion to extend the State of Emergency
(under which the authorities have
extensive anti-terrorism powers and heightened levels of security
including checkpoints and road blocks)
by a further month had been
passed by Parliament with a majority of 87 votes.
36. In
a report dated 22 October 2009, the United States of America State
Department published a report entitled “Report
to Congress on Incidents During the Recent Conflict in Sri Lanka”,
which compiled incidents from January 2009,
when the fighting intensified, until the
end of May 2009. Without reaching any conclusions as to whether they
had occurred or would constitute violations of international law, it
set out extensive reports of enforced child soldiers, the killing of
captives or combatants trying to surrender, enforced disappearances
and severe humanitarian conditions during the hostilities.
37. On
21 November 2009, the Sri Lankan
Government announced its decision that all internally displaced
persons would be given freedom of movement and allowed to leave the
detention camps from 1 December 2009.
- In
its Global Appeal 2010-2011, the UNHCR reported that:
“The Government-led military
operations in northern Sri Lanka which ended in May 2009
displaced some 280,000 people, most of whom fled their homes in the
last few months of the fighting. The majority of these internally
displaced persons (IDPs) now live in closed camps in Vavuniya
district, as well as in camps in Mannar, Jaffna and Trincomalee. An
additional 300,000 IDPs, some of whom have been displaced since 1990,
are also in need of durable solutions.
The IDPs originate mainly from the Mannar, Vavuniya,
Kilinochchi, Mullaitivu and Jaffna districts in northern Sri Lanka,
as well as from some areas in the east of the country. Though the end
of hostilities has paved the way for the voluntary return of
displaced people, some key obstacles to return remain. For instance,
many of the areas of return are riddled with mines and unexploded
ordnance. Not all are considered to be of high risk, particularly
those away from former frontlines, but mine-risk surveys and the
demarcation of no-go areas are urgently needed.
Other key obstacles to return include the need to
re-establish administrative structures in areas formerly held by the
Liberation Tigers of Tamil Eelam; the destruction or damaged
condition of public infrastructure and private homes; and the
breakdown of the economy - including agriculture and fisheries.
The Government of Sri Lanka is planning the return
framework, and it has called on UNHCR for support with return
transport, non-food items, return shelter, livelihoods support and
assistance in building the capacity of local authorities.
With some progress having been
recently achieved, it is hoped that a substantial number of IDPs will
be able to return to their places of origin in the latter half of
2009, but a large portion of new IDPs are also likely to remain in
the camps and with host families until well into 2010.”
39. In
a Human Rights Report 2009, dated 11 March 2010, the United States
of America State Department stated that the
Sri-Lankan Government accepted assistance from NGOs and international
actors for the IDP camps but management of the camps and control of
assistance were under the military rather than civilian authorities.
Food, water, and medical care were all insufficient in the first few
weeks after the end of the war, but by July the situation had
stabilised and observers reported that basic needs were being met. In
June the military withdrew from inside the camps but continued to
provide security around the barbed wire-enclosed perimeter. The
IDPs in the largest camp, Manik Farm, were not given freedom of
movement until December, when a system of temporary exit passes was
implemented for those who had not yet been returned to their
districts of origin. Some observers said that this exit system still
did not qualify as freedom of movement.
- Human
Rights Watch, in their report, World Report 2010, estimated that six
months after the main fighting ended, the Government continued to
hold more than 129,000 people (more than half of them women and
girls) in the camps. Over 80,000 of these were children. The camps
were severely overcrowded, many of them holding twice the number
recommended by the UN. As a result, access to basic requirements such
as food, water, shelter, toilets and bathing, had been inadequate.
These conditions imposed particular hardships on the elderly,
children and pregnant women. The camps were under military
administration, and effective monitoring by humanitarian agencies was
lacking. The authorities failed to provide camp residents with
sufficient information about the reason for their continued
detention, the whereabouts of relatives, or the criteria and
procedure for their return home.
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 11 November 2010 (“the November 2010 COI Report”)
stated as follows:
4.23 The International Crisis
Group (ICG) report Sri Lanka: A
Bitter Peace, 11 January 2010,
also referred to “extra-legal detention centres”
maintained by the military and observed: “These detained have
had no access to lawyers, their families, ICRC or any other
protection agency, and it is unclear what is happening inside the
centres. In addition, ‘the grounds on which the ex-combatants
have been identified and the legal basis on which they are detained
are totally unclear and arbitrary’. Given the well-established
practice of torture, enforced disappearance and extra-judicial
killing of LTTE suspects under the current and previous Sri Lankan
governments, there are grounds for grave concerns about the fate of
the detained. The government has announced that of those alleged
ex-combatants currently detained, only 200 will be put on the trial;
most will detained for a further period of ‘rehabilitation’
and then released.”
...
4.25 Referring to the “at
least 11,000 people” detained “in so-called
‘rehabilitation centers” because of their alleged
association with the LTTE, the HRW [document Legal
Limbo, The Uncertain Fate of Detained LTTE Suspects in Sri Lanka,
released on 29 January 2010, observed: “The government has
routinely violated the detainees’ fundamental human rights,
including the right to be informed of specific reasons for arrest,
the right to challenge the lawfulness of the detention before an
independent judicial authority, and the right of access to legal
counsel and family members. The authorities’ consistent failure
to inform families of the basis for the detainees’ arrest and
their whereabouts raises serious concerns that some detainees may
have been victims of torture and ill-treatment, which are more likely
to take place where due process of law is lacking and which have long
been serious problems in Sri Lanka. Given the lack of information
about some detainees, there is also a risk that some may have been
‘disappeared’.”
4.31 The UNHCR ‘Eligibility
Guidelines for Assessing the International Protection Needs of
Asylum-Seekers from Sri Lanka’,
5 July 2010 reported that “In the wake of the conflict, almost
11,000 persons suspected of LTTE links were arrested and detained in
high-security camps” adding that “According to a
Government survey, as of 1 March 2010, 10,781 LTTE cadres were being
held at 17 centres. Among the detainees were 8,791 males and 1,990
females.” and noted that “Some of the adult detainees
have...been released after completing rehabilitation programmes or
because they were no longer deemed to present a risk, including some
persons with physical disabilities.”
- The
November 2010 COI Report also set out:
4.09 The EIU [The Economist
Intelligence Unit], Country Report, Sri Lanka, July 2010
reported: “The EU has warned that Sri Lanka faces losing trade
advantages under the Generalised System of Preferences-Plus
(GSP-Plus) scheme from August 15th, unless the Government
commits itself in writing to improving its human rights record. The
EU has put forward 15 conditions that it says the Government needs to
promise to meet within the next six months. These include: ensuring
that the 17th amendment to the constitution, which requires that
appointments to public positions be impartial and reflect the
country’s ethnic and religious mix, is enforced; repealing
parts of the Prevention of Terrorism Act that are incompatible with
Sri Lanka’s covenants on political and human rights;
reforming the criminal code to allow suspects immediate access to a
lawyer on arrest; and allowing journalists to carry out their
professional duties without harassment. However, the Government has
rebuffed the EU, stressing that the issues that it has raised are
internal political matters that should not be linked to trade. “The
EU is not the only international body currently putting pressure on
the government. Sri Lanka has also rejected the UN’s
appointment of a three-member panel to examine possible human rights
violations during the island’s civil war. The Sri Lankan
authorities have warned that they will not provide visas for panel
members to enter the country.”
...
4.11 The EIU, Country Report, Sri
Lanka, August 2010 noted that: “The decision by the UN
secretary-general, Ban Ki-moon [on 22 June 2010], to appoint a panel
to examine accountability issues stemming from the final stages of
the island’s civil war, which ended in May 2009, has prompted a
strong reaction in Sri Lanka ...
4.12 On 17 September 2010 the UN News Service reported
that “Secretary-General Ban Ki moon has held his first
meeting with the panel of experts set up to advise him on
accountability issues relating to alleged violations of international
humanitarian and human rights law during the final stages last year
of the conflict in Sri Lanka.” The source also noted that the
role of the experts was to examine “the modalities, applicable
international standards and comparative experience with regard to
accountability processes, taking into account the nature and scope of
any alleged violations in Sri Lanka.”
The treatment of returned failed asylum seekers at Colombo airport
United Kingdom Government Reports
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 18 February 2009 (“the February 2009 COI Report”)
sets out a series of letters from the British High Commission –
hereafter “BHC”, Colombo, on arrival procedures at
Colombo airport. In its letter of 28 August 2008, the BHC observed:
“[T]he correct procedure for
[Department of Immigration and Emigration [DIE]] officers is to
record the arrival of these persons manually in a logbook held in the
adjacent Chief Immigration Officer’s office. The name, date and
time of arrival and arriving flight details are written into the log.
It records why the person has come to their attention and how the
case was disposed of. I have had the opportunity to look at the log,
and it appears that the only two ways of disposal are to be passed to
the Criminal Investigations Department [CID], or allowed to proceed.
The office of the State
Intelligence Service [SIS] is in the immigration arrivals hall and an
officer from SIS usually patrols the arrivals area during each
incoming flight. Invariably, if they notice a person being
apprehended they approach IED
[Immigration and Emigration Department] and
take details in order to ascertain in [sic] the person may be of
interest to them. Their office contains three computer terminals, one
belonging to the airport containing flight information and two
stand-alone terminals. If an apprehended person is considered
suitable to be passed to CID, they are physically walked across the
terminal building to the CID offices. A CID officer should then
manually record the arrival of the person in a logbook held in their
office...often persons shown in the DIE logbook to have been handed
to CID are never actually recorded as being received in the CID
logbook. It is believed that CID has allowed these persons to proceed
and no action has been taken against them.”
- The
same letter also noted that CID offices at the airport contained two
computers, which were not linked to any national database. Any checks
on persons detained or apprehended were conducted over the phone with
colleagues in central Colombo. There were no fingerprint records at
the airport. One computer contained records of suspects who had been
arrested and charged with offences, and court reference numbers. It
continued as follows:
“Were a Sri Lankan national
to arrive at Colombo Airport having been removed or deported from the
United Kingdom, they would be in possession of either a valid
national Sri Lankan passport, or an emergency travel
document/temporary passport, issued by the Sri Lankan High Commission
in London. The holder of a valid passport would have the document
endorsed by the immigration officer on arrival and handed back to
him/her. A national passport contains the national ID card number on
the laminated details page. I have made enquiries with the DIE at
Colombo Airport, and with the International Organisation for
Migration who meet certain returnees at the airport, and both have
confirmed that a person travelling on an emergency travel document is
dealt with similarly. They too have the document endorsed by the
immigration officer on arrival and returned to them. Before issuing
an emergency travel document, the Sri Lankan High Commission in
London will have details of an applicant confirmed against records
held in Colombo and will thus satisfactorily confirm the holder’s
nationality and identity. If a returnee subsequently wishes to obtain
a national identity card, they have to follow the normal procedures.”
- In
a letter dated 22 January 2009, the BHC reported that an official had
spent several hours observing the return of failed asylum seekers
from the United Kingdom, including those who were in possession of
emergency travel documents, issued by the Sri Lankan High Commission
in London. In the official’s opinion, the fact that certain
returnees had been issued with emergency travel documents by the Sri
Lankan High Commission in London did not seem to make any difference
to their treatment upon arrival.
- The
Report of Information Gathering Visit to Colombo on 23 to 29 August
2009, conducted jointly by the Foreign and Commonwealth Office
Migration Directorate and United Kingdom Border Agency Country of
Origin Information Service (“the Report of Information
Gathering Visit, August 2009”), concluded that all enforced
returns (of whatever ethnicity) were referred to the CID at the
airport for nationality and criminal record checks, which could take
more than 24 hours. All enforced returns were wet-fingerprinted.
Depending on the case, the individual could also be referred to the
SIS and/or the Terrorist Investigation Department for questioning.
Anyone who was wanted for an offence would be arrested.
- The
report set out that those with a criminal record or LTTE connections
would face additional questioning and might be detained. In general,
non-government and international sources agreed that Tamils from the
north and east of the country were likely to receive greater scrutiny
than others, and that the presence of the factors below would
increase the risk that an individual could encounter difficulties
with the authorities, including possible detention:
- Outstanding
arrest warrant
- Criminal
record
- Connection
with the LTTE
- Bail
jumping/escape from custody
- Illegal
departure from Sri Lanka
- Scarring
- Involvement
with media or NGOs
- Lack
of an ID card or other documentation
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 11 November 2010 set out the following:
33.20 The BHC letter of 30 August 2010 went on to
observe that: “At the beginning of 2010, partly due to the
large numbers of Sri Lankans being returned from around the world and
causing logistical problems, CID procedures were relaxed in that they
no longer had to detain returnees until written confirmation was
received from the local police. All returnees are still interviewed,
photographed and wet fingerprinted. The main objective of these
interviews is to establish if the returnee has a criminal record, or
if they are wanted or suspected of committing any criminal offences
by the police. The photographs are stored on a standalone computer in
the CID office at the airport. The fingerprints remain amongst paper
records also in the CID office at the airport. Checks are initiated
with local police, but returnees are released to a friend or
relative, whom CID refers to as a surety. This surety must provide
evidence of who they are, and must sign for the returnee. They are
not required to lodge any money with CID. “The main CID offices
at Colombo Airport, which are housed on the ground floor adjacent to
the DIE embarkation control, are currently undergoing a complete
refurbishment funded by the Australian government. The one completed
office suite has three purpose built interview rooms, and facilities
where returnees can relax and eat meals.”
...
33.22 A British High Commission letter of 14 September
2010 reported: “There is strong anecdotal evidence that
scarring has been used in the past to identify suspects. Previous
conversations with the police and in the media, the authorities have
openly referred to physical examinations being used to identify
whether suspects have undergone military style training. More recent
claims from contacts in government ministries suggest that this
practice has either ceased or is used less frequently. At the very
least it appears that the security forces only conduct these when
there is another reason to suspect an individual, and are not looking
for particular scars as such, but anything that may indicate the
suspect has been involved in fighting and/or military training. There
is no recent evidence to suggest that these examinations are
routinely carried out on immigration returnees.”
Other Sources
49. On
19 October 2009, Tamilnet reported that twenty-nine Tamil youths were
taken into custody by the State Intelligence Unit of the Sri Lanka
Police at the International Airport in two separate incidents whilst
trying to leave Sri Lanka. It was also reported that since July 2009,
special teams of the State Intelligence Unit and police had been
deployed in the airport to monitor the movement of Tamils who try to
go abroad.
The treatment of Tamils in Colombo
United Kingdom Government Reports
- The
Report of Information Gathering Visit, August 2009, stated that the
frequency of cordon and search operations had not reduced
significantly in recent months, though there were fewer large-scale
operations than in previous years. In general, young male Tamils
originating from the north and east of the country were most at risk
of being detained following cordon and search operations, with the
presence of the risk factors set out above increasing that risk.
Those without employment or legitimate purpose for being in Colombo
were also likely to be seen as suspect. The same report also noted
that most sources agreed that there had been few, if any, abductions
or disappearances since June 2009. There was not a great deal of
available information about the profile of Tamils targeted for
abduction, although it appeared that people linked to the media might
be more vulnerable. Police did not generally carry out effective
investigations. It went on to note that most sources agreed that
there had not been any significant reduction in the number of
checkpoints in Colombo, whose stated purpose remained to detect and
prevent terrorist activity. In general those most likely to be
questioned were young Tamils from the north and east; those without
ID; those not resident or employed in Colombo; and those recently
returned from the West. However, most sources said that arrests at
checkpoints were rare and none had been reported since June 2009.
It was reportedly fairly likely that someone would be stopped at a
checkpoint en route from
the airport to Colombo city. Finally, it clarified that people who
wished to live in Colombo but did not originate from there must
register with the local police station with a national ID card or
full passport, and details of planned length and purpose of stay. In
theory, whilst anyone was entitled to register to stay in Colombo,
some sources suggested that young Tamil men originally from the north
or east of the country could encounter difficulties and face closer
scrutiny. The presence of any of the risk factors set out above would
also attract greater attention from the police.
The treatment of Tamils in general
United Nations Reports
51. The
UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka, April 2009 (“UNHCR
2009 Sri Lanka Guidelines”) observed that:
“The significant majority of
reported cases of human rights violations in Sri Lanka involve
persons of Tamil ethnicity who originate from the North and East...In
Government-controlled areas, Tamils who originate from the North and
the East, which are, or have been under LTTE control, are frequently
suspected as being associated with the LTTE. For this reason, Tamils
from the North and the East are at heightened risk of human rights
violations related to the implementation of anti-terrorism and
anti-insurgency measures. While this risk exists in all parts of
Sri Lanka, it is greatest in areas in which the LTTE remains
active, and where security measures are heaviest, in particular the
North and parts of the East, and in and around Colombo.”
52. The
Guidelines also noted that the Government had been heavily criticised
for the high number of Tamils who have been subjected to arrest and
security detention, particularly on the basis of information gathered
in registration exercises and questioning at cordons and road
checkpoints in and around the capital.
53. The
UNHCR ‘Note on the Applicability of the 2009 Sri Lanka
Guidelines’, dated July 2009, observed:
“The country of origin
information that UNHCR has considered indicates that Tamils from the
North of Sri Lanka continue to face a significant risk of suffering
serious human rights violations in the region (and elsewhere in the
country) because of their race (ethnicity) or (imputed) political
opinion. Tamils in the North are still heavily targeted in the
security and anti-terrorism measures described in the Guidelines.
Wide scale detention and confinement of Tamils from the North remains
a serious concern. Pro-Government paramilitary elements also continue
to operate with impunity against Tamils in the North.”
- The
UNHCR Eligibility Guidelines for Assessing the International
Protection Needs of Asylum-Seekers from Sri Lanka of 5 July 2010,
which superseded the April 2009 Guidelines contained information on
the particular profiles for which international protection needs may
arise in the current context. It was stated that:
“given
the cessation of hostilities, Sri Lankans originating from the north
of the country are no longer in need of international protection
under broader refugee criteria or complementary forms of protection
solely on the basis of risk of indiscriminate harm. In light of the
improved human rights and security situation in Sri Lanka, there is
no longer a need for group-based protection mechanisms or for a
presumption of eligibility for Sri Lankans of Tamil ethnicity
originating from the north of the country. It is important to bear in
mind that the situation is still evolving, which has made the
drafting of these Guidelines particularly complex.”
- In
summary, the following were UNHCR’s recommendations: All claims
by asylum seekers from Sri Lanka should be considered on the basis of
their individual merits according to fair and efficient refugee
status determination procedures and up-to-date and relevant country
of origin information. UNHCR considered that, depending on the
particular circumstances of the case, some individuals with profiles
similar to those outlined in the Guidelines require a particularly
careful examination of possible risk. These risk profiles, while not
necessarily exhaustive, are set out below:
(i) persons
suspected of having links with the Liberation Tigers of Tamil Eelam
(LTTE);
(ii) journalists
and other media professionals;
(iii) civil
society and human rights activists;
(iv) women and
children with certain profiles; and
(v) lesbian,
gay, bisexual and transgender (LGBT) individuals.
It
was also stated that in the light of Sri Lanka’s 26 year
internal armed conflict, and a record of serious human rights
violations and transgressions of international humanitarian law,
exclusion considerations under Article 1F of the 1951 Convention
Relating to the Status of Refugees may arise in relation to
individual asylum seeker claims by Sri Lankan asylum seekers.
Other Sources
56. The
BBC reported in March 2010 that the Colombo Police force had opened
four special units in Colombo suburbs able to take statements in
Tamil, with plans for more. Previously, Tamil-speaking Sri Lankans
had to rely on a friend to translate their complaints into Sinhala.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that implementation of the deportation order to
return him to Sri Lanka would be in violation of Article 3 of the
Convention, which in so far as relevant read as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
The
Government contested that argument.
A. Admissibility
- The
Court finds that the complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The applicant
- The
applicant maintained that in case of his return to Sri Lanka he would
be exposed to a real risk of being subjected to treatment contrary to
Article 3 of the Convention.
- He
submitted that in general returning ethnic Tamils from the Jaffna
peninsula to Sri Lanka would be contrary to Article 3 of the
Convention.
- Moreover,
having regard to his assistance to the LTTE for many years and his
numerous arrests by the Sri Lankan authorities, he would be at
particular risk of persecution and of being subjected to outrages by
the Sri Lankan authorities if returned to Sri Lanka, including
in connection with his arrival at Colombo airport.
- In
addition, in case of return, the applicant would become an object of
interest to the authorities as a result of his family’s
membership of the LTTE.
2. The Government
- The
Government maintained that no violation of Article 3 would occur if
the applicant were to be returned to Sri Lanka.
- From
the outset they pointed out that there were reasons to doubt
the credibility of the applicant’s divergent and contradictory
statements, including about his detentions by the Sri Lankan
authorities and about his relations with the LTTE and that on this
point the case deviates materially from NA. v. the United Kingdom
(cited above).
- Nevertheless,
even if they disregarded the fact that the applicant made divergent
statements, he did repeat that the last detention took place in 1991,
which was five or six years prior to his departure; that it took
place as part of a mass arrest; that he was released in connection
with a peace agreement; that he was released unconditionally without
being charged or sentenced; and that he had not subsequently and up
to his departure in 1997 been questioned, detained or otherwise
subjected to actions on the part of the authorities that might
indicate that the authorities suspected him of being a member of the
LTTE. As, moreover, the applicant departed lawfully from Sri Lanka in
1997 on the basis of a passport issued by the authorities, the
Government finds it unlikely that the Sri Lankan authorities would
know of the applicant with the effect that, upon his return to Sri
Lanka via Colombo airport, there would be a real risk that he would
be subjected to treatment prohibited by Article 3 of the Convention.
- Furthermore,
in view of the very few details provided by the applicants during the
domestic proceedings as to his family’s involvement with the
LTTE, including that of his brothers and his spouse, in the
Government’s opinion, such an element does not in the present
case increase the risk that the applicant will be detained upon his
return to Sri Lanka.
- In
sum, the Government were of the opinion that the present case is
clearly distinguishable from NA. v. the United Kingdom (cited
above) and that all the possible risk factors identified by the
applicant taken cumulatively, also in the light of the current
situation in Sri Lanka, do not constitute a sufficient basis for
concluding that, upon return to Colombo airport or at a later date,
the applicant would be of sufficient interest to the authorities in
their efforts to combat the LTTE to warrant his detention and
interrogation.
3. The Court
(a) General
principles
- The Contracting States have the right as a matter of
international law and subject to their treaty obligations, including
the Convention, to control the entry, residence and expulsion of
aliens (Üner v. the Netherlands [GC], no. 46410/99,
§ 54, ECHR 2006 ....; Abdulaziz, Cabales and Balkandali
v. the United Kingdom, judgment of 28 May 1985, Series A no. 94,
p. 34, § 67, Boujlifa v. France, judgment of 21
October 1997, Reports 1997 VI, p. 2264, § 42).
- However,
expulsion by a Contracting State may give rise to an issue under
Article 3, and hence engage the responsibility of that State under
the Convention, where substantial grounds have been shown for
believing that the person concerned, if deported, faces a real risk
of being subjected to treatment contrary to Article 3. In such a
case, Article 3 implies an obligation not to deport the person in
question to that country (Saadi v. Italy [GC], no. 37201/06,
§ 125, 28 February 2008).
- The
assessment of whether there are substantial grounds for believing
that the applicant faces such a real risk inevitably requires that
the Court assess the conditions in the receiving country against the
standards of Article 3 of the Convention (Mamatkulov and Askarov
v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR
2005 I). These standards imply that the ill treatment the
applicant alleges he will face if returned must attain a minimum
level of severity if it is to fall within the scope of Article 3. The
assessment of this is relative, depending on all the circumstances of
the case (Hilal v. the United Kingdom, no. 45276/99, §
60, ECHR 2001 II). Owing to the absolute character of the right
guaranteed, Article 3 of the Convention may also apply where the
danger emanates from persons or groups of persons who are not public
officials. However, it must be shown that the risk is real and that
the authorities of the receiving State are not able to obviate the
risk by providing appropriate protection (H.L.R. v. France,
judgment of 29 April 1997, Reports 1997 III, § 40).
- The
assessment of the existence of a real risk must necessarily be a
rigorous one (see Chahal v. the United Kingdom, judgment of 15
November 1996, Reports 1996-V, § 96; and Saadi v.
Italy, cited above, § 128). It is in principle for the
applicant to adduce evidence capable of proving that there are
substantial grounds for believing that, if the measure complained of
were to be implemented, he would be exposed to a real risk of being
subjected to treatment contrary to Article 3 (see N. v. Finland,
no. 38885/02, § 167, 26 July 2005). Where such
evidence is adduced, it is for the Government to dispel any doubts
about it.
- If
the applicant has not yet been extradited or deported when the Court
examines the case, the relevant time will be that of the proceedings
before the Court (see Saadi v. Italy, cited above, §
133). A full and ex nunc assessment is called for as the
situation in a country of destination may change in the course of
time. Even though the historical position is of interest in so far as
it may shed light on the current situation and its likely evolution,
it is the present conditions which are decisive and it is therefore
necessary to take into account information that has come to light
since the final decision taken by the domestic authorities (see Salah
Sheekh v. the Netherlands, no. 1948/04, § 136, ECHR 2007 I
(extracts)).
- The
foregoing principles, and in particular the need to examine all the
facts of the case, require that this assessment must focus on the
foreseeable consequences of the removal of the applicant to the
country of destination. This in turn must be considered in the light
of the general situation there as well as the applicant’s
personal circumstances (Vilvarajah and Others v. the United
Kingdom, judgment of 30 October 1991, Series A no. 215,
§ 108). In this connection, and where it is relevant to do so,
the Court will have regard to whether there is a general situation of
violence existing in the country of destination.
- The
Court has never ruled out the possibility that a general situation of
violence in a country of destination will be of a sufficient level of
intensity as to entail that any removal to it would necessarily
breach Article 3 of the Convention. Nevertheless, the Court
would adopt such an approach only in the most extreme cases of
general violence, where there was a real risk of ill-treatment simply
by virtue of an individual being exposed to such violence on return.
Exceptionally, however, in cases where an applicant alleges that he
or she is a member of a group systematically exposed to a practice of
ill-treatment, the Court has considered that the protection of
Article 3 of the Convention enters into play when the applicant
establishes that there are serious reasons to believe in the
existence of the practice in question and his or her membership of
the group concerned. In those circumstances, the Court will not then
insist that the applicant show the existence of further special
distinguishing features if to do so would render illusory the
protection offered by Article 3. This will be determined in the light
of the applicant’s account and the information on the situation
in the country of destination in respect of the group in
question. In determining whether it should or should not
insist on further special distinguishing features, it follows that
the Court may take account of the general situation of violence in a
country. It considers that it is appropriate for it to do so if that
general situation makes it more likely that the authorities (or any
persons or group of persons where the danger emanates from them) will
systematically ill treat the group in question (NA. v. the
United Kingdom, no. 25904/07, §§ 115- 117, 17 July
2008).
(b) Assessing
the risk to Tamils returning to Sri Lanka
- In
NA. v. the United Kingdom (cited above), the Court made a
number of general findings relating to the assessment of the risk of
Tamils returning to Sri Lanka.
- It
noted, among other things, that the United Kingdom Asylum and
Immigration Tribunal had recognised a number of factors (§§ 30
42) which might increase the risk of serious harm to Tamils
from the Sri Lankan authorities in Colombo. The factors were set
out in a headnote as follows:
“(1) Tamils are not per se at risk of serious
harm from the Sri Lankan authorities in Colombo. A number of factors
may increase the risk, including but not limited to: a previous
record as a suspected or actual LTTE member; a previous criminal
record and/or outstanding arrest warrant; bail jumping and/or
escaping from custody; having signed a confession or similar
document; having been asked by the security forces to become an
informer; the presence of scarring; return from London or other
centre of LTTE fundraising; illegal departure from Sri Lanka; lack of
an ID card or other documentation; having made an asylum claim
abroad; having relatives in the LTTE. In every case, those factors
and the weight to be ascribed to them, individually and cumulatively,
must be considered in the light of the facts of each case but they
are not intended to be a check list.
(2) If a person is actively wanted by the
police and/or named on a Watched or Wanted list held at Colombo
airport, they may be at risk of detention at the airport.
(3) Otherwise, the majority of returning
failed asylum seekers are processed relatively quickly and with no
difficulty beyond some possible harassment.
(4) Tamils in Colombo are at increased risk
of being stopped at checkpoints, in a cordon and search operation, or
of being the subject of a raid on a Lodge where they are staying. In
general, the risk again is no more than harassment and should not
cause any lasting difficulty, but Tamils who have recently returned
to Sri Lanka and have not yet renewed their Sri Lankan identity
documents will be subject to more investigation and the factors
listed above may then come into play.
...”
- The
Court stated (§§128-130) that while account had to be taken
of the general situation of violence in Sri Lanka at the present
time, it was satisfied that it would not render illusory the
protection offered by Article 3 to require Tamils challenging their
removal to Sri Lanka to demonstrate the existence of further special
distinguishing features which would place them at real risk of
ill-treatment contrary to that Article. Therefore, the Court
considered that it was in principle legitimate, when assessing the
individual risk to returnees, to carry out that assessment on the
basis of the list of “risk factors”, which the domestic
authorities, with the benefit of direct access to objective
information and expert evidence, had drawn up. It noted that the
United Kingdom Asylum and Immigration Tribunal AIT had been careful
to avoid the impression that the risk factors were a “check
list” or exhaustive, and did not consider it necessary to
identify any additional risk factors, which had not been duly
considered by the domestic authorities. The Court emphasised,
however, that the assessment of whether there was a real risk must be
made on the basis of all relevant factors which may increase the risk
of ill-treatment. In its view, due regard should also be given to the
possibility that a number of individual factors may not, when
considered separately, constitute a real risk; but when taken
cumulatively and when considered in a situation of general violence
and heightened security, the same factors may give rise to a real
risk. Both the need to consider all relevant factors cumulatively and
the need to give appropriate weight to the general situation in the
country of destination derive from the obligation to consider all the
relevant circumstances of the case.
- Moreover,
on the basis of the evidence before it, the Court found (§133)
that, in the context of Tamils being returned to Sri Lanka, the
protection of Article 3 of the Convention enters into play when an
applicant can establish that there are serious reasons to believe
that he or she would be of sufficient interest to the authorities in
their efforts to combat the LTTE as to warrant his or her detention
and interrogation.
- In
respect of returns to Sri Lanka through Colombo, the Court found
(§§134-136) that there was a greater risk of detention and
interrogation at the airport than in Colombo city since the
authorities would have greater control over the passage of persons
through an airport than they would over the population at large. In
addition, the majority of the risk factors identified by the United
Kingdom Asylum and Immigration Tribunal would be more likely to bring
a returnee to the attention of the authorities at the airport than in
Colombo city. It was also at the airport that the cumulative risk to
an applicant, arising from two or more factors, would crystallise.
Hence the Court’s assessment of whether a returnee is at real
risk of ill-treatment may turn on whether that person would be likely
to be detained and interrogated at Colombo airport as someone of
interest to the authorities. While this assessment is an individual
one, it too must be carried out with appropriate regard to all
relevant factors taken cumulatively including any heightened security
measures that may be in place as a result of an increase in the
general situation of violence in Sri Lanka. Furthermore,
although noting that the objective evidence before it contained
different accounts of the precise nature of the procedures followed
at Colombo airport and the nature of the information technology
there, the Court considered at the very least that the Sri Lankan
authorities have the technological means and procedures in place to
identify at the airport failed asylum seekers and those who are
wanted by the authorities. The Court further found that it was a
logical inference from those findings that the rigour of the checks
at the airport is capable of varying from time to time, depending on
the security concerns of the authorities. These considerations must
inform the Court’s assessment of the risk to the applicant.
- Finally,
in the Court’s view (§137) it could not be said that there
was a generalised risk to Tamils from the LTTE in a Government
controlled area such as Colombo. The Court accepted the findings of
the domestic authorities that individual Tamils might be able to
demonstrate a real and personal risk to them from the LTTE in
Colombo. However, it also accepted their assessment that this would
only be to Tamils with a high profile as opposition activists, or
those seen by the LTTE as renegades or traitors. The Court therefore
considered that it also had to examine any complaint as to the risk
from the LTTE in the context of the individual circumstances of an
applicant’s case.
- On
the basis of the objective information set out above (see paragraphs
26 – 56) concerning Sri Lanka after the passing on 17 July 2008
of the judgment in NA. v. the United Kingdom (cited
above), the Court finds that since the end of hostilities in
Sri Lanka and the death of the leader of the LTTE in May 2009,
there has been progress inter alia on the reintegration of
internally displaced persons and on the treatment of Tamils in
Colombo. However, there is no evidence of an improvement in the human
rights situation of Tamils suspected of having or recently having had
links with the LTTE.
- The
Court therefore maintains its conclusion in NA v. the United
Kingdom (cited above) that there is not a general risk of
treatment contrary to Article 3 to Tamils returning to Sri Lanka. The
protection of Article 3 of the Convention will enter into play only
when an applicant can establish that there are serious reasons to
believe that he or she would be of sufficient interest to the
authorities to warrant his or her detention and interrogation upon
return (NA. v. the United Kingdom, ibid, § 133).
- The
assessment of whether there is a real risk must therefore continue to
be made on a case by case basis considering all relevant factors, (as
set out in the United Kingdom Asylum and Immigration Tribunal Country
Guidance case of LP
and endorsed in NA. v. the United Kingdom, ibid, §
129-130) which may increase the risk of ill treatment, including
but not limited to: a previous record as a suspected or actual LTTE
member; a previous criminal record and/or outstanding arrest warrant;
bail jumping and/or escaping from custody; having signed a confession
or similar document; having been asked by the security forces to
become an informer; the presence of scarring; return from London or
other centre of LTTE fundraising; illegal departure from Sri Lanka;
lack of an ID card or other documentation; having made an asylum
claim abroad; and having relatives in the LTTE. The Court would also
reiterate that due regard must continue to be given to the
possibility that a number of individual factors may not, when
considered separately, constitute a real risk, but may do so when
taken cumulatively (NA. v. the United Kingdom, ibid, § 130)
bearing in mind any heightened security measures that may be in place
as a result of any increase in the general situation in Sri Lanka.
(c) The
applicant’s case
- On
the basis of the foregoing observations, the Court will examine the
applicant’s particular circumstances in order to determine
whether there would be a violation of Article 3 if he were to be
expelled to Sri Lanka.
- In
so far as the applicant’s submissions entail that he would also
be at risk of persecution by the LTTE, the Court reiterates that the
hostilities between the latter and the Sri Lankan Army ended on 19
May 2009. Moreover, it notes that according to the applicant’s
own statement, he only assisted the LTTE, as opposed to being a
member, and that the last time he worked for them was in January
1997. He did not assist them thereafter, which apparently did not
lead to any problems, and he left in December 1997 (see
paragraph 14).
- In
assessing the risk to the applicant from the Sri Lankan authorities,
the Court will examine the strength of the applicant’s claim to
be at real risk as a result of an accumulation of the risk factors
identified.
- The
applicant is of Tamil ethnicity and has Tamil features. He is from
Jaffna in the north of Sri Lanka.
- He
is a man and approximately forty-three years old.
- He
left his country lawfully to join his Sri Lankan wife in Denmark
after the couple had officially married in Sri Lanka. The applicant
entered Denmark on 13 December 1997 with a valid passport and visa.
- The
applicant did not request asylum in Denmark until 14 June 2007,
which was ten years after he entered the country legally.
- The
applicant gave divergent statements about his motive for asylum,
notably about his involvement with the LTTE (compare, for example,
paragraphs 11, 12 and 14).
- Nevertheless,
the applicant has maintained that he was never a member of LTTE.
Moreover, as also stated by the Refugee Appeals Board, most recently
in its decision of 16 March 2010, even if the applicant’s
divergent statements are disregarded, he did repeat that his last
detention by the Sri Lankan authorities took place in 1991, which was
five or six years prior to his departure; that it took place as part
of a mass arrest; that he was released in connection with a peace
agreement; that he was released unconditionally without being charged
or sentenced. In addition, even if the applicant’s photo was
taken in connection with the arrest in 1991, from that year and until
his departure in December 1997 he was not detained or questioned, no
picture or fingerprints were taken, nor was he in any other way the
object of interest from the Sri Lankan authorities. Furthermore,
without any problems, the applicant departed lawfully from Sri Lanka
in 1997 for the purpose of family reunification with his spouse on
the basis of a passport issued by the authorities.
93. In
the Court’s view the present case is thus clearly
distinguishable from NA.
v. the United Kingdom (cited
above), in which NA. left Sri Lanka clandestinely after having been
arrested and detained by the army on six occasions between 1990 and
1997 on suspicion of involvement with LTTE. During one or possibly
more of these periods of detention he was ill treated and his
legs had scars from being beaten with batons. Moreover, during his
most recent detention, NA. had been photographed and his fingerprints
had been taken. His father had also signed certain papers in order to
secure NA.’s release.
- In
respect of the applicant’s relatives in the LTTE, having regard
to the few details provided thereon and the fact that there is no
indication that the Sri Lankan authorities are aware of the
applicant’s siblings’ and spouse’s alleged previous
affiliation with the LTTE, this carries little weight in the present
case (see NA. v. the United, cited above, § 146).
- The
Court also observes that there are no grounds for believing that the
Sri Lankan authorities are informed that the applicant made an
asylum claim abroad and he will not be deported from a location which
is considered a centre of LTTE fundraising.
- Taking
the above elements into account as well as the arrival procedures at
Colombo airport (see paragraphs 43 49), assuming that the
applicant were to be removed through that airport, in the Court’s
view he has failed to substantiate that he will be of specific
interest to the Sri Lankan authorities there.
- In conclusion, having regard to the current general
situation in Sri Lanka taken cumulatively with the risk factors
identified above, the Court finds that there are no substantial
grounds for finding that the applicant would be of interest to the
Sri Lankan authorities if he were returned. In those circumstances,
the Court finds that an implementation of the order to deport the
applicant to Sri Lanka would not give rise to a violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF OTHER ARTICLES OF THE CONVENTION
- In
his observations of 22 June 2009 the applicant also invoked Articles
6, 8 and 14 of the Convention and, it appears, in substance, also
Articles 5 and 13 of the Convention.
- The
Court notes that in the criminal proceedings the applicant did not
request leave to appeal to the Supreme Court and he did not
subsequently bring any complaint relating to Article 8 before the
domestic courts. As to the remainder, in the light of all the
material in its possession, and in so far as the criteria set out in
Article 35 § 1 have been complied with and the matters
complained of are within its competence, the Court finds that they do
not disclose any appearance of a violation of the invoked Articles of
the Convention. It follows that these complaints must be rejected in
accordance with Article 35 § 4 of the Convention.
III. RULE 39
OF THE RULES OF COURT
- The
Court recalls that, in accordance with Article 44 § 2 of the
Convention, the present judgment will not become final until (a) the
parties declare that they will not request that the case be referred
to the Grand Chamber; or (b) three months after the date of the
judgment, if reference of the case to the Grand Chamber has not been
requested; or (c) the Panel of the Grand Chamber rejects any request
to refer under Article 43 of the Convention.
- It considers that the indication made to the
Government under Rule 39
of the Rules of Court (see above § 4) must continue in force
until the present judgment becomes final or until the Panel of the
Grand Chamber of the Court accepts any request by one or both of the
parties to refer the case to the Grand Chamber under Article 43 of
the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 3
of the Convention admissible and the remainder of the application
inadmissible;
- Holds that an implementation of the order to
deport the applicant to Sri Lanka would not give rise to a
violation of Article 3 of the Convention;
- Decides to continue to indicate to the
Government under Rule 39 of the Rules of
Court that it is desirable in the interests of the proper conduct of
the proceedings not to deport the applicant until such time as the
present judgment becomes final or further order.
Done in English, and notified in writing on 20 January 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Renate Jaeger
Registrar President
