CAT/C/23/D/96/1997
page 6
4.7
As to the assessment of the medical evidence supplied by the author, the State party notes
that the medical certificate of 11 December 1995 stated that the violence described by the author
might have caused the pain in his shoulders and back from which he was suffering. The State
party also refers to the medical examination conducted by the medical research team of Amnesty
International after the domestic proceedings had been formally concluded, noting that while the
physical examination revealed a variety of abnormalities consistent with the type of torture the
author had described, the author did not satisfy the criteria for a diagnosis of post-traumatic
stress syndrome, and although he might have suffered from this syndrome in the past he had
managed to develop effective ways of coping with it.
4.8
Lastly, the State party argues that several of the individual factors that the Committee has
deemed to be of decisive importance in other communications it has dealt with play little or no
role in the present one, such as the ethnic origin or political activities of the individual
concerned. In the present case the author did not have any problems relating to his Sinhalese
origin, nor did he sympathize with or work actively for any political party.
4.9
The State party concludes that the author has not substantiated elements which would
allow it to be concluded that, on the basis of his ethnic background, alleged political affiliation
and history of detention, the author would be in danger of being subjected to torture upon his
return to Sri Lanka. Accordingly, it considers the communication ill-founded.
Counsel’s comments
5.1
In his reply to the State party’s submission, counsel notes that the State party does not
contest the most important elements of the author’s account of his activities as a photographer,
i.e. abduction and escape from Sri Lanka. The inconsistencies to which the State party refers do
not raise doubts as to the general veracity of his claim and are to be explained by the absence of
a Sinhalese interpreter during the initial asylum proceedings and the fact that the author had
previously been subjected to torture and serious ill-treatment..
5.2
Counsel further notes the State party’s argument that the author’s activities in Sri Lanka
were not based on political conviction and that he was never a member of a political party.
According to counsel the position of the State party displays an incorrect and narrow definition
of “political belief”. Even though the author was not member of a political party, political belief
was attributed to him by the authorities owing to his having published photographs of victims of
human rights violations. According to both Dutch case law and international refugee law,
attributed political belief has been considered as one criterion for determining refugee status.
5.3
Counsel refutes the argument that by moving to another part of Sri Lanka the author was
able to avoid any further difficulties from October 1992 until his departure. Counsel maintains
that the author went into hiding and worked in secret and points out that the State party itself
admits not having enough data to ascertain whether the author was actually obliged to work in
secret. The question of an internal flight alternative was not previously raised during the
domestic proceedings and should therefore not be an issue before the Committee. In any case,
an internal flight alternative would not be feasible, in view of the fact that the author was being
persecuted by the authorities.