Zwar keine generelle Gefahr der menschenrechtswidrigen Behandlung für Tamilien, die nach Colombo zurückkehren, aber die Gefährdung muss in jedem Fall individuell beurteilt werden; Tamilen, die für die Sicherheitskräfte für ihren Kampf gegen die LTTE interessant sein könnten, sind ernsthaft gefährdet; Tamilen, die bereits inhaftiert waren und deren Inhaftierung von den Sicherheitskräften dokumentiert worden ist, sind bei Rückkehr ernsthaft gefährdet; zur Berücksichtigung von Herkunftsländerinformationen und Positionspapieren des UNHCR.
1. General principles
108. In assessing whether there would be a violation of Article 3 if a Contracting State were to expel an individual to another State, the Court will consider the following principles, as they appear in its settled caselaw.
109. In the first instance, 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 1997VI, p. 2264, § 42). The right to political asylum is also not contained in either the Convention or its Protocols (Salah Sheekh, cited above, § 135, with further authorities). 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).
110. The assessment 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).
111. 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).
112. 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).
113. 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.
114. However, a general situation of violence will not normally in itself entail a violation of Article 3 in the event of an expulsion (see H.L.R., cited above, § 41). Indeed, the Court has rarely found a violation of Article 3 on that ground alone.
115. From the foregoing survey of its caselaw, it follows that the Court has never excluded 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.
116. 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 (see Saadi v. Italy, cited above, § 132). 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 light of the applicant's account and the information on the situation in the country of destination in respect of the group in question (see Salah Sheekh, cited above, § 148). The Court's findings in that case as to the treatment of the Ashraf clan in certain parts of Somalia, and the fact that the applicant's membership of the Ashraf clan was not disputed, were sufficient for the Court to conclude that his expulsion would be in violation of Article 3.
117. 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 (see Salah Sheekh, § 148; Saadi v. Italy, §§ 132 and 143; and, by converse implication, Thampibillai, §§ 64 and 65; Venkadajalasarma, §§ 66 and 67, all cited above).
2. The assessment of objective information
118. In the light of the large amount of objective information placed before it by the parties, the Court also considers it necessary to restate the approach it takes to the assessment of such information before considering what conclusions may be drawn from it the present case. This is particularly important given that there is a dispute between the parties as to the weight to be attached to the UNHCR's assessment of the general situation in Sri Lanka (see paragraphs 96 and 102).
119. In this connection, the Court recalls the principles recently set out in Saadi v. Italy, cited above, §§ 128-133, that in assessing conditions in the proposed receiving country, the Court will take as its basis all the material placed before it or, if necessary material obtained proprio motu. It will do so, particularly when the applicant – or a third party within the meaning of the Article 36 of the Convention – provides reasoned grounds which cast doubt on the accuracy of the information relied on by the respondent Government. The Court must be satisfied that the assessment made by the authorities of the Contracting State is adequate and sufficiently supported by domestic materials as well as by materials originating from other reliable and objective sources such as, for instance, other Contracting or non-Contracting States, agencies of the United Nations and reputable non-governmental organisations (see Salah Sheekh, cited above, § 136; Garabayev v. Russia, no. 38411/02, § 74, 7 June 2007, ECHR 2007-... (extracts)). As regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human-rights-protection organisations such as Amnesty International, or governmental sources, including the US State Department (see Saadi v. Italy, cited above, § 131).
120. In assessing such material, consideration must be given to its source, in particular its independence, reliability and objectivity. In respect of reports, the authority and reputation of the author, the seriousness of the investigations by means of which they were compiled, the consistency of their conclusions and their corroboration by other sources are all relevant considerations (see Saadi v. Italy, cited above, § 143).
121. The Court also recognises that consideration must be given to the presence and reporting capacities of the author of the material in the country in question. In this respect, the Court observes that States (whether the respondent State in a particular case or any other Contracting or non-Contracting State), through their diplomatic missions and their ability to gather information, will often be able to provide material which may be highly relevant to the Court's assessment of the case before it. It finds that same consideration must apply, a fortiori, in respect of agencies of the United Nations, particularly given their direct access to the authorities of the country of destination as well as their ability to carry out onsite inspections and assessments in a manner which States and non-governmental organisations may not be able to do.
122. While the Court accepts that many reports are, by their very nature, general assessments, greater importance must necessarily be attached to reports which consider the human rights situation in the country of destination and directly address the grounds for the alleged real risk of ill-treatment in the case before the Court. Ultimately, the Court's own assessment of the human rights situation in a country of destination is carried out only to determine whether there would be a violation of Article 3 if the applicant in the case before it were to be returned to that country. Thus the weight to be attached to independent assessments must inevitably depend on the extent to which those assessments are couched in terms similar to Article 3. Thus in respect of the UNHCR, due weight has been given by the Court to the UNHCR's own assessment of an applicant's claims when the Court determined the merits of her complaint under Article 3 (see Jabari v. Turkey, no. 40035/98, § 41, ECHR 2000-VIII). Conversely, where the UNHCR's concerns are focussed on general socio-economic and humanitarian considerations, the Court has been inclined to accord less weight to them, since such considerations do not necessarily have a bearing on the question of a real risk to an individual applicant of ill-treatment within the meaning of Article 3 (see Salah Sheekh, cited above, § 141).
3. Assessing the risk to Tamils returning to Sri Lanka
123. In considering whether the applicant has established that he would be at real risk of ill-treatment in Sri Lanka, the Court observes as a preliminary matter that the Government propose to remove him to Colombo.
124. The Court first observes that it is accepted by the parties to the case that there has been a deterioration in the security situation in Sri Lanka. This deterioration took place before the present application was lodged with the Court and has continued while the case has been pending, particularly since the formal end of the ceasefire in January 2008. It is also clear to the Court that the evidence before it supports the conclusion that the deterioration in the security situation in Sri Lanka has been accompanied by an increase in human rights violations, on the part both of the LTTE and the Sri Lankan Government. Killings, abductions and disappearances have increased (see the UNHCR Position Paper at paragraph 65 above; the United Nations High Commissioner for Human Rights at paragraph 69 above; the 2007 Amnesty International report at paragraph 76 above; and the Human Rights Watch report at paragraph 78 above). Investigations into such serious human rights violations are inadequate (see the IIGEP at paragraph 75 above and the Human Rights Watch report "Recurring Nightmare" at paragraph 80 above). Torture and ill-treatment are common place (see the conclusions of the United Nations Special Rapporteur on Torture at paragraph 70 above) and there is also clear evidence of what the AIT described as "a culture of torture with impunity" (see paragraph 35 above and the 2008 Amnesty International report at paragraph 77 above).
125. However, the Court also notes that the domestic authorities, while recognising this deterioration and the corresponding increase in human rights violations, did not conclude that this created a general risk to all Tamils returning to Sri Lanka (see in particular the findings of the AIT in LP in paragraphs 232–234 of the determination; set out at paragraph 43 above), nor has the applicant in the present case sought to challenge that conclusion in his submissions.
127. In respect of the UNHCR Position Paper (see paragraphs 65–68 above) and in light of its own observations at paragraphs 118–122 above, the Court shares the view of the AIT in LP that "substantive weight" should be accorded to it. However, the Court also accepts the domestic authorities' view that the UNHCR Position Paper, by its nature, speaks in necessarily broad terms. In contrast to the findings made by the UNHCR and relied on by the Court in the Jabari judgment, cited above, §§ 18 and 41, the UNHCR's Position Paper is a general survey of the varying risks to each of Sri Lanka's different ethnic groups. As such, the views expressed in that paper could not themselves be decisive in the domestic authorities' assessment of the risk to Tamils returning to Sri Lanka and cannot be decisive in the Court's own assessment of the same. Indeed, the Position Paper said that Tamils "with certain profiles" were liable to suffer serious human rights transgressions and that where individual acts of harassment did not in and of themselves constitute persecution, taken together, they might cumulatively amount to a serious violation of human rights and therefore be persecutory.
128. It follows that both the assessment of the risk to Tamils of "certain profiles" and the assessment of whether individual acts of harassment cumulatively amount to a serious violation of human rights can only be done on an individual basis. Thus, while account must be taken of the general situation of violence in Sri Lanka at the present time, the Court is 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 (see Salah Sheekh, cited above, § 148 and paragraphs 116–117 above).
129. The Court therefore considers that it is 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, have drawn up.
130. Despite this conclusion, the Court emphasises that the assessment of whether there is 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 (see the Hilal judgment, cited above, § 60).
131. Moreover, the Court finds that the information before it points to the systematic torture and ill-treatment by the Sri Lankan authorities of Tamils who will be of interest to them in their efforts to combat the LTTE.
133. On the basis of this evidence, the Court therefore finds 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 (see Saadi v. Italy, cited above, § 132).
134. In respect of returns to Sri Lanka through Colombo, the Court also finds that there is a greater risk of detention and interrogation at the airport than in Colombo city since the authorities will have a greater control over the passage of persons through any airport than they will over the population at large. In addition, the majority of the risk factors identified by AIT in LP will be more likely to bring a returnee to the attention of the authorities at the airport than in Colombo city. It is also at the airport that the cumulative risk to an applicant arising from two or more factors will 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.
135. In this connection, the Court notes that the objective evidence before it contains different accounts of the precise nature of the procedures followed at Colombo airport and the nature of the information technology there (see the British High Commission letters and the Immigration and Refugee Board of Canada report at paragraphs 60–63 and 74 above). Indeed, the evidence suggests that the procedures followed by the Sri Lankan authorities may change over time. However, the Court also notes that, with the exception of the extracts of the British High Commission's letter of 25 January 2008 that appeared in the March 2008 COI Report (see paragraph 60 above), all the above evidence was considered by the AIT in LP where it was undisputed that records were kept and interviews conducted at the airport and where the AIT found that computerised records were available to the police at the airport, from which they could identify possible "bail jumpers" (see paragraph 35 above).
137. Finally, in the Court's view, it cannot be said that there is a generalised risk to Tamils from the LTTE in a government controlled area such as Colombo. The Court accepts the findings of the domestic authorities that individual Tamils may be able to demonstrate a real and personal risk to them from the LTTE in Colombo. However, it also accepts their assessment that this will only be to Tamils with a high profile as opposition activists, or as those seen by the LTTE as renegades or traitors (see in particular the PS determination of the IAT at paragraph 47 above). The Court therefore considers that it must also examine any complaint as to the risk from the LTTE in the context of the individual circumstances of the applicant's case.
4. The applicant's case
141. In respect of the alleged risk to the applicant from the LTTE, the Court reiterates that it accepts the domestic authorities' assessment that while there may be a risk to Tamils in Colombo from the LTTE, this will be only to Tamils with a high profile as opposition activists, or those seen by the LTTE as renegades or traitors. Like the domestic authorities, it can discern no such factors in the applicant's case and is persuaded that, since his encounter with the LTTE took place ten years ago, if returned to Colombo he would be of little interest to them. He would therefore not be at real risk of ill-treatment contrary to Article 3 by the LTTE if returned to Colombo.
142. 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 in LP (see paragraphs 30–46 above). However, it will do so in light of its own observations set out in paragraphs 130–136 above. In particular, the Court underlines first, the need to have due regard for the deterioration of the security situation in Sri Lanka and the corresponding increase in general violence and heightened security; and second, the need to take a cumulative approach to all possible risk factors identified by the applicant as applicable to his case.
143. In LP, the AIT considered a previous criminal record and/or arrest warrant to be a significant factor, albeit with the qualification that it did not mean, of itself, that the applicant had a well-founded fear of persecution or other significant harm on return to Sri Lanka. The Court recalls that the AIT also found that the issue was to establish the credibility of the criminal record, or an arrest warrant, and to decide whether it was reasonably likely to exist in respect of the applicant in the particular case (see paragraph 34 above). In the Court's view, the present applicant, who was arrested and detained by the Sri Lankan authorities six times, photographed and fingerprinted, can rely on this risk factor, particularly since his claim was found credible on this point. The applicant did not jump bail or abscond from police custody so as to engage this separate risk factor identified by the AIT in LP (see paragraph 35 above) and the Court accepts the AIT's view that persons who jump bail or abscond are at a higher level of risk of being identified from police computers at the airport.
144. The Court also accepts the assessment of the AIT that scarring will have significance only when there are other factors that will bring the applicant to the attention of the authorities such as being wanted on an outstanding arrest warrant or a lack of means of identification (see paragraph 37 above). However, where there is a sufficient risk that an applicant will be detained, interrogated and searched, the presence of scarring, with all the significance that the Sri Lankan authorities are then likely to attach to it, must be taken as greatly increasing the cumulative risk of ill-treatment to that applicant.
145. The Court recognises that it has been over ten years since the applicant was last detained by the Sri Lankan army. However, the Court considers that the greatest possible caution should be taken when, as in the applicant's case, it is accepted that a returnee has previously been detained and a record made of that detention. As the AIT found in LP (see paragraph 44 above), such a record may be readily accessible to airport authorities, meaning the person in question may become of interest to the authorities during his or her passage through the airport. Where there is a likelihood that this will result in delay in entering the country, there is clearly a greater risk of detention and interrogation and with it a greater risk of ill-treatment contrary to Article 3 (see paragraphs 131–133 above). Equally, in light of its observations at paragraphs 130–136 and 142 above, the Court finds the passage of time cannot be determinative of the risk to the present applicant without a corresponding assessment of the current general policies of the Sri Lankan authorities (see, mutatis mutandis, Saadi v. Italy, cited above, § 43; the Jabari judgment¸ cited above, § 41, in fine). Their interest in particular categories of returnees is likely to change over time in response to domestic developments and may increase as well as decrease. In the Court's view, it cannot be excluded that on any given date if there is an increase in the general situation of violence then the security situation in Sri Lanka will be such as to require additional security at the airport. The Court also recalls its finding at paragraphs 134–136 above, notably that computerised records are available to the airport authorities. Given that it is undisputed that the applicant was arrested six times between 1990 and 1997, that he was ill-treated in detention and that it appears a record was made of his detention on at least one occasion, the Court considers that there is a real risk that the applicant's record will be available to the authorities at the airport. Furthermore, it cannot be excluded that on any given date the security situation in Sri Lanka would be such as to require additional security at the airport and that, due to his risk profile, the applicant would be at even greater risk of detention and interrogation.
146. Insofar as they have been relied on in this case, the Court has also examined the additional factors in LP: the age, gender and origin of a returnee, a previous record as a suspected or actual LTTE member, return from London, having made an asylum claim abroad and having relatives in the LTTE. It has also noted the relative weight which the AIT attached to each risk factor (see paragraphs 32, 33, 38, 40 and 41 above). It considers that, where present, these additional factors contribute to the risk of identification, questioning, search and detention at the airport and, to a lesser extent, in Colombo. In respect of having relatives in the LTTE, the Court accepts the Government's submission that this is of little weight in this case; few details of the involvement of the applicant's brother in the LTTE or his present whereabouts have been provided. However, the Court accepts that the remaining factors are all capable of being relied upon by the applicant and, on the facts of his case, their cumulative effect is to increase further the risk to him, which is already present due to the probable existence of a record of his last arrest and detention. He is a male Tamil who is thirty-two years of age and the AIT found there was a higher propensity on the part of the Sri Lanka authorities to target young men and women from the north and east in a period of "virtual civil war" (see paragraph 32 above). This must apply a fortiori since the formal end of the ceasefire (see paragraph 54 above). Sri Lanka and has considered cumulatively the factors present in the applicant's case. It also notes its finding at paragraphs 131–133 above that those considered by the authorities to be of interest in their efforts to combat the LTTE are systematically exposed to torture and ill-treatment. There is a real risk that the authorities at Colombo airport would be able to access the records relating to the applicant's detention and if they did so, when taken cumulatively with the other risk factors he has relied upon, it is likely the applicant would be detained and strip-searched. This in turn would lead to the discovery of his scars. On this basis, the Court finds that these are substantial grounds for finding that the applicant would be of interest to the Sri Lankan authorities in their efforts to combat the LTTE. In those circumstances, the Court finds that at the present time there would be a violation of Article 3 if the applicant were to be returned.