3, it does not create an obligation not to remove someone from a State in
the circumstances described in that article.. (7)
7.15 The State party is of the view that should article 16 of the
Convention be found to apply where it is alleged that removal per se
constitutes cruel, inhuman or degrading treatment or punishment, it
should do so only in very exceptional circumstances. It is submitted that
the aggravation of the author's state of health possibly caused by his
deportation would not amount to the type of cruel, inhuman or degrading
treatment envisaged by article 16 of the Convention and attributable to the
State party; reference is made in this regard to the Committee's decision
in G.R.B. v. Sweden. Furthermore, article 16 of the Convention obliges
States to prevent the proscribed treatment; it does not create a positive
duty to provide medical care should the authors allegedly not receive
comparable medical care in their home country. Further, it is submitted
that there is no evidence that the required medical care in Sri Lanka is
inadequate. Finally, article 16, paragraph 2, indicates that the provisions
of the Convention are without prejudice to the provisions of national law
which relate to expulsion.
Counsel's comments on the merits
8.1 Counsel contests the State party's assertion that this case was
examined by "a competent and independent domestic tribunal". He claims
that the Immigration and Refugee Board failed to appreciate both the facts
of the case and the applicable law.
8.2 Counsel states that the most recent evidence available from Sri Lanka
shows a situation of terrible human rights abuses in line with those
described in article 3, paragraph 2, of the Convention against Torture.
There have been several suicide bomb attacks in Colombo and other areas
of the country. There has also been a major LTTE offensive in the north.
There are reports of large-scale round-ups of Tamils in the centre and the
capital of the country, as well as a serious resurgence of forced
disappearances. (8)
8.3 Counsel refers to the Committee's general comment on article 3 of the
Convention against Torture and argues that article 3 applies to the
author's case as follows.
(a) There is a situation in Sri Lanka of a "consistent pattern of gross,
flagrant or mass violations of human rights". The existence of torture with
impunity, on a massive and systematic scale, is clear from any reading of
the situation;