CAT/C/71/D/896/2018
deportation. Indications of personal risk may include, but are not limited to: (a) the
complainant’s ethnic background; (b) political affiliation or political activities of the
complainant or his or her family members; (c) arrest or detention without guarantee of a fair
treatment and trial; (d) sentence in absentia; and (e) previous torture (para. 45). With respect
to the merits of a communication submitted under article 22 of the Convention, the burden
of proof is upon the author of the communication, who must present an arguable case, that is,
submit substantiated arguments showing that the danger of being subjected to torture is
foreseeable, present, personal and real (para. 38). The Committee also recalls that it gives
considerable weight to findings of fact made by organs of the State party concerned, however
it is not bound by such findings, as it can make a free assessment of the information available
to it in accordance with article 22 (4) of the Convention, taking into account all the
circumstances relevant to each case (para. 50).
7.5
In assessing the risk of torture in the present case, the Committee takes note of the
complainant’s claim that he would face a risk of treatment contrary to article 3 of the
Convention by the Sri Lanka Army if he were returned to Sri Lanka, because of his Tamil
ethnicity and presumed affiliation with the Liberation Tigers of Tamil Eelam. In that regard,
the Committee also takes note of the complainant’s assertion that he worked as a welder in a
garage owned by members of the Liberation Tigers of Tamil Eelam and that, for several
months, he was forced to attend a military training in a camp operated by the Liberation
Tigers of Tamil Eelam. The Committee further takes note of his contention that he was
confined in detention camps by the Sri Lanka Army, where he was interrogated multiple
times about his possible involvement with the Liberation Tigers of Tamil Eelam, and that he
was tortured on several occasions during the interrogations. The Committee takes note of his
contention that he escaped from the camp and managed to leave Sri Lanka, after his uncle
arranged for his release by paying a bribe. The Committee is mindful of the documents
brought before it, including a warrant for the complainant’s arrest and a medical report issued
by the Institute for Human Rights and Medical Assessment. The Committee takes note of the
complainant’s statement that he had the emblem of the Liberation Tigers of Tamil Eelam
tattooed on his right upper arm. The Committee notes that he is a member of the Tamil Youth
Organization in the Netherlands and the Dutch Tamil Forum and that he was part of various
events organized by Tamil groups in the Netherlands, including in cooperation with persons
listed as terrorists in the Gazette of Sri Lanka.
7.6
The Committee observes that the State party authorities considered that the
complainant’s narrative was not credible, because he had provided inconsistent and vague
statements concerning essential elements of his account. The Committee takes note of the
State party’s observation that, during asylum proceedings, the complainant, who was
represented by legal counsel, was examined and found to be medically fit to be interviewed.
It was only in the context of the fourth set of proceedings that the complainant indicated that
his medical condition, namely, the progression of chronic post-traumatic stress disorder,
might have interfered with his ability to provide complete and coherent accounts of his case.
The Committee takes note of the State party’s position that the report issued by the Institute
for Human Rights and Medical Assessment does not prove that the complainant was
subjected to torture, because the scars it describes could have had other causes. The
Committee also takes note of the State party’s statement that the arrest warrant and additional
documents adduced by the complainant were found not to have been issued by the competent
authorities, due to irregularities detected in their format, and that the complainant failed to
challenge that assessment, even though he had the opportunity to do so. The Committee
observes the State party’s position that there is no indication that the complainant has been
sought by, or attracted the adverse attention of, the Sri Lankan authorities and that his current
activities are too marginal to be of interest to the authorities.
7.7
The Committee notes the current human rights situation in Sri Lanka and refers to its
concluding observations on the fifth periodic report of Sri Lanka, in which it expressed
concern, inter alia, about reports on the persistence of abductions, torture and ill-treatment
perpetrated by State security forces in Sri Lanka, including the military and the police, 12
12
8
CAT/C/LKA/CO/5, paras. 9–12. See also Human Rights Council resolution 46/1, on promoting
reconciliation, accountability and human rights in Sri Lanka.