[New search]
[Contents list]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
FIFTH
SECTION
CASE OF
T. N. AND S. N. v. DENMARK
(Application
no. 36517/08)
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 T. N. and S. N
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. 36517/08) 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 two Sri Lankan nationals, T.N. and S.N. (“the
applicants”), on 1 August 2008. The
acting President of the Chamber decided to grant the applicants
anonymity (Rule 47 § 3 of the Rules of Court).
- The
applicants were represented by Mr Tyge Trier, a lawyer practising in
Copenhagen. The Danish Government (“the Government”) were
represented by their Agent, Mr Thomas Winkler, the Ministry of
Foreign Affairs, and their Co-agent, Mrs Nina Holst-Christensen, the
Ministry of Justice.
- The
applicants allege that an implementation of the deportation order to
return them to Sri Lanka would be in violation of Article 3 of the
Convention.
- On
4 August 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 10 September 2008 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
- The
applicants were born in 1965 and 1979 in Sri Lanka. Currently they
live at the Jelling Asylum Centre. They are of Tamil ethnicity.
- On
14 September 2005, with valid passports and three month visas, the
applicant spouses entered Denmark, where the applicant husband, TN’s
sister and brother lived permanently. His three other siblings lived
elsewhere in Europe.
- On
13 December 2005 the applicants requested asylum.
- On
19 December 2005 they explained that they had never been arrested,
politically active or involved in any conflict with the authorities.
The applicants were married on 2 December 2004 and lived in
Batticaloa on the east coast of Sri Lanka, where the applicant
husband ran a fishing business and an electrical
company, and had a good income. They lost their fishing boat and
their house in the tsunami on 26 December 2004. Thereafter they lived
with the applicant wife’s parents. The applicants did not
sympathise with the Tamil Tigers (LTTE) but the
latter had sometimes forced the applicants to support them
financially. After the applicants had left Sri Lanka, their motorbike
had been confiscated by the Karuna group, which had stated that “they
were waiting for the applicants”. The Karuna group, later known
as the Tamil People’s Liberation Tigers,
(TMVP), was led by Karuna, a previous
commander in the LTTE. Initially it was a
paramilitary group that helped the Government fight the LTTE and
later, in 2007, it became a registered political party.
- On
22 December 2005 the applicant husband added that on 3
April 2005 he had been confronted by
four unknown men, three of whom belonged to the Karuna group, who
wanted information about his cousin, who was a member of the LTTE.
Later in May 2005 two persons had tried to stop him on his
motorcycle. On another day in May, he had been stopped on the street
by two of the previously mentioned four persons, who again requested
information about the cousin. This was the reason why the applicants
had decided to go to Denmark.
- On
16 January 2006 the applicant husband added that his home was
searched on average once a month in a general way, whereby the whole
village was surrounded and the whole population was gathered by the
military who wanted to find out whether there were any LTTE members
in the village. Every now and then he was taken away by the military.
In 1988 he had been detained by the Indian Army for one night and his
feet and hands had been tied. He was released after his eldest
brother paid bail for him. In 1998 he was detained by the Sri Lankan
Army for two nights, suspected of being a member of the LTTE. They
hit his jaw, leaving a scar. Following mediation by members of
Parliament, he was released together with nine other detainees. The
applicant was not detained or ill treated by the authorities up
to his departure in 2005. In September 2005 two persons had
tried to stop him and his wife on their motorbike in a forest area in
order to kill them, but they had managed to escape.
- By
decision of 19 April 2006 the Aliens Authorities
(Udlændingestyrelsen,
now Udlændingeservice) refused to grant the
applicants asylum.
- On
appeal, during a hearing before the Refugee Board
(Flygtningenævnet) on 14
August 2006 the applicant husband stated that he had been approached
by the LTTE and asked to pay them money for the first time around
1996. All fishermen were to pay money to the LTTE. The latter would
come to his home at one to three month intervals. After he lost his
fishing boat in 2004 they stopped asking him for money. On
3 April 2005 he had been confronted by three men from the
Karuna group and a Singhalese who beat him and forced him to admit
that he had paid money to the LTTE. They also asked about the
whereabouts of his cousin, who was a member of the LTTE at the
relevant time. The last time he had seen his cousin was at his aunt’s
home in 2001, but only briefly, and they did not really talk to each
other. The applicant did not like the cousin due to his connection
with the LTTE. The applicant did not know where the cousin lived at
the relevant time and the four men let him go. Later, in May 2005,
two persons from the Karuna group, one of whom had taken part in the
incident on 3 April 2005, stopped him and asked about his cousin’s
whereabouts and then let him go. In September 2005, two days prior to
his departure, two unknown men had tried to stop him and his wife on
their motorcycle, but they had managed to escape.
13. By
decision of 14 August 2006 the Refugee
Board confirmed the Aliens Authorities’ decision of 19 April
2006 that the applicants failed to fulfil the criteria under
section 7 of the Aliens Act (Udlændingeloven).
It noted that the applicants’ asylum motive was based mainly on
fear of the Karuna group, which demanded the male applicant’s
cooperation to obtain information about his cousin. It did not rule
out that it was possible, as stated by the applicants, that the Sri
Lankan authorities cooperated with the Karuna group but it found that
approaches from people related to the Karuna group in Batticaloa had
to be considered geographically restricted and emphasized that in the
present case the male applicant had a low profile and had been able
to depart legally from Colombo in September 2005.
-
An
anonymised summary of the applicants’ case, together with
thirty other cases involving Sri Lankan nationals, was published on
the Refugee Appeal Board’s Website.
15. By
letter of 20 September 2006 the applicants’ representative
requested a re-opening of the case.
- On
30 October 2006, in the light of a recommendation of 27 October 2006
from the UNHCR to the
Ministry of Refugee, Immigration and
Integration Affairs about the situation in Sri Lanka, the Refugee
Appeals Board decided to suspend all cases concerning ethnic Tamils
from Sri Lanka.
- On
14 March 2007, and anew on 14 August 2007, finding that no essential
new information or aspects had been submitted, the Refugee Appeals
Board refused to reopen the applicant’s case.
- On
27 August 2007, the Ministry of Refugee, Immigration and Integration
Affairs refused the applicants’ application for a residence
permit on humanitarian grounds.
19. On
26 September 2007 the Refugee Appeals Board received a letter
by a named person, who stated that the applicant husband was
suspected by the security forces and the Karuna group of having
cooperated with the LTTE. The Refugee Appeals Board understood the
letter as a request for a reopening of the case. The applicant
husband submitted a letter of 10 October 2007 repeating his
previous statements, and adding that he had been forced to try to
find the cousin who was a member of the LTTE.
20. On
29 October 2007, the Refugee Appeals Board refused
once more to reopen the applicants’ case.
- On
31 October 2007 the UNHCR requested the
Refugee Appeals Board
to stay forced returns of ethnic Tamils from Northern and Eastern
Sri Lanka with reference to a letter dated 23 October 2007 from
the European Court of Human Rights to the British Government. On the
same day the Refugee Appeals Board extended the time-limit for the
applicants’ departure.
22. On
6 November 2007 the Refugee Appeals Board replied to the
UNHCR’s request in general terms, refusing to introduce a
general stay of forced returns of ethnic Tamils from Northern and
Eastern Sri Lanka with reference to the general situation for this
group.
- On
2 July 2008 the latter decided to resume the forced
deportation of the applicants.
-
The UNHCR repeated its request on 16 July 2008, to which the Refugee
Appeals Board replied on 4 August 2008, again refusing to extend the
applicants’ departure date.
- In
the meantime, two daughters were born to the applicants on
28 September 2006 and 9 March 2008.
Subsequent events before the Court and domestic proceedings
- On
Friday 1 August 2008 the Danish Refugee Council (Dansk
Flygtningehjælp), an NGO, requested that the Refugee
Appeals Board reopen the case. It stated, inter alia, that the
applicants had provided new information in the case at an interview
held with the said NGO. The applicants had stated that, several times
since their departure, persons from the Karuna group and Sri Lankan
soldiers had contacted the applicant wife’s parents, questioned
them about the applicants and had their home searched. The parents
had therefore gone into hiding. Due to recent developments the Karuna
group had been able to operate in the Batticaloa area. The applicant
husband had been imprisoned in 1988/1989 and again in 1998 on
suspicion of affiliation with the LTTE. Both times he was subjected
to ill-treatment, leaving scars on his body and face. Moreover, and
differently from claims in previous statements, the applicant had
carried out jobs for the LTTE, such as purchasing batteries, petrol,
food and other goods in the Government controlled areas and bringing
the products to the LTTE. In fact in 1998, the applicant husband had
been released from prison at the request of the LTTE so that he could
continue to work for them. He had avoided mentioning his work for the
LTTE for fear of being expelled from Denmark.
- On
the same day, on the applicants’ behalf, the Danish Refugee
Council submitted a letter to the Court of Human Rights requesting
that it stay the applicants’ deportation.
- On
4 August 2008, 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.
- Consequently,
on 7 August 2008 the Refugee Appeals Board extended the time-limit
for the applicants’ departure until further notice.
- On
17 December 2008 the Refugee Appeals Board again refused to reopen
the applicants’ asylum case finding that no essential new
information or aspects had been submitted. As regard the new and
extended information, for example about having scars on his body as
opposed to his previous explanation about having “only” a
scar on his jaw as a result of his detention in 1998, and about his
alleged work for the LTTE, the Refugee Appeals Board noted that in
view of the numerous times he had been requested to provide all
relevant information, and the fact that he had on his own initiative
requested a reopening of the case several times with reference to new
information, he had not provided a reasonable explanation as to why
he had not furnished this information before. The Refugee Appeals
Board therefore rejected the new information as fabricated for the
occasion.
- 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
applicants’ 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:
“... The Refugee Appeals Board still finds that,
if returned to Sri Lanka, your clients will not risk persecution or
outrages as covered by section 7 of the Aliens Act by the Sri Lankan
authorities, including in connection with arrival at Colombo Airport.
In this connection, the Refugee Appeals Board emphasises that your
male client stated during the asylum proceedings that he has not been
politically active or otherwise been involved in conflicts with the
Sri Lankan authorities or the LTTE. The Board thus emphasises that
your male client appears not to stand out in any way at all as he has
exclusively been the subject of money demands from the LTTE like
other fishermen in Batticaloa. In that connection, the Board refers
to the fact that your clients left Sri Lanka lawfully using their own
Sri Lankan national passports. The Refugee Appeals Board also refers
to the fact that it appears from the background material available to
the Board that, in general, individuals who have previously supported
the LTTE on a lower level are not of interest to the authorities.
Thus, generally, only high-profile members of the LTTE who are still
active and wanted, or individuals wanted for serious criminal
offences are of interest to the authorities, see United Kingdom: Home
Office, Operational Guidance Note, Sri Lanka, August 2009, and Home
Office, Report of Information Gathering Visit to Colombo, Sri Lanka
23 29 August 2009. Also against that background, the
Refugee Appeals Board finds that your clients will not be at a real
risk of persecution or outrages as covered by section 7 of the Aliens
Act on the part of the Karuna Group or the TMVP, which are in the
factual control of Batticaloa according to United Kingdom: Home
Office, Operational Guidance Note, Sri Lanka, August 2009. In that
connection, the Refugee Appeals Board observes that your clients’
incidents with the group took place in 2005. Likewise, on the
background of the above, the Refugee Appeals Board finds that the
fact that your male client’s cousin has been a member of the
LTTE for fifteen years cannot warrant a residence permit under
section 7 of the Aliens Act according to the background material now
available. It should be noted that your male client stated at the
Board hearing on 14 August 2006 about his cousin, V, that he last saw
V in 2001 at his mother’s sister’s house and did not
otherwise have any contact with him. The fact that as ethnic Tamils
from eastern Sri Lanka your clients may risk being questioned and
investigated by the authorities upon entry into the country does not
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, from which it appears that 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 ID; those not resident
or employed 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 that connection,
the Board refers to the fact that your clients appear not to stand
out at all. Against that background, the Refugee Appeals Board finds
that it has not been rendered probable that the Sri Lankan
authorities would take a special interest in your clients upon
return. This also applies regardless of the fact that your male
client may have scars on his face or on his body. In that respect,
please see the Danish Government’s further observations of 20
May 2009 to your pleading of 6 April 2009 in the complaint T.N.
and S.N. v. Denmark before the European Court of Human Rights. As in
its decision of 14 August 2006, the Refugee Appeals Board still finds
that the general situation for ethnic Tamils in Sri Lanka is not of
such nature that it in itself warrants 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 that,
upon a specific and individual assessment, the alien is deemed at
risk of persecution or outrages. The authority of the Refugee Appeals
Board is restricted to determining asylum-relevant issues, and it is
thus outside the Board’s authority to determine whether an
alien who does not meet the conditions of Article 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
its decision of 14 August 2006, the Board still finds that it has not
been rendered probable that, in case of return to Sri Lanka, your
clients would be at a concrete and individual risk of persecution as
covered by section 7(1) of the Aliens Act, or that your clients would
be at a real risk of outrages as covered by section 7(2) of the
Aliens Act. It should be noted that your clients’ time-limit
for departure is still suspended until further notice on the basis of
the request of 4 August 2008 from the European Court of Human Rights.
If your clients’ basis of lawful residence in Denmark lapses,
your clients must leave Denmark immediately, see section 33 of the
Aliens Act. As appears from the decision of the Refugee Appeals Board
of 14 August 2006, your clients may be forcibly returned to Sri Lanka
if they do not leave voluntarily, see section 32a, cf. section 31, of
the Aliens Act. The decision also comprises your clients’ two
children.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Asylum
proceedings in Denmark
33. 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 Appeals 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.
35. 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 up-dated 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.
41. 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.
47. 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.
48. 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.
50. 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
60. 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
62. 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.”
63. 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.
64. 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
67. 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 Karuna
group and the Thamil Makkal Viduthalai Pulikal (TMVP) political party
- The
United Kingdom Border Agency’s Operational Guidance Note on Sri
Lanka from August 2009 stated as follows:
3.6.5
In March 2004, the LTTE’s
eastern commander, Colonel Karuna, broke away from the mainstream
LTTE. Much of the breakaway “Karuna/TMVP” (Tamil National
Party) group was wiped out and disbanded during 2004 in a military
counter-offensive by the mainstream LTTE. However, it was rebuilt
during 2004-05 by Karuna and his close associates. Initially a
paramilitary group supported by the Sri Lankan authorities in its
fight against the LTTE, the TMVP was registered as a political party
in 2007. Between late 2006 and early 2007, the TMVP group fought
together with the Sri Lankan armed forces against the LTTE in the
Eastern Province.
Under deputy leader
Sivanesathurai Chandrakanthan (a.k.a. Pillayan), the TVMP contested
their first provincial elections in 2007, winning a majority in the
Eastern Provincial Council.
Pillayan was named Chief
Minister for the East and is now the leader of the TVMP.
3.6.6
In May 2007, the TVMP was
reported to have become further factionalised when the deputy leader
of the Karuna group, Pillayan, became involved in a dispute with
Karuna. The dispute escalated into violence and Karuna reportedly
ordered his loyalists to hunt down and kill Pillayan. In November
2008, Human Rights Watch reported deepening tensions and violent
infighting within the TVMP, particularly between the Karuna and
Pillayan factions.
It was later reported that Karuna
had joined the Sri Lanka Freedom Party as MP Vinayagamoorthy
Muralidharan with a large following of Tamils from the East. Most
recently, he was appointed Minister of National Integration and
Reconciliation.
3.6.7
The ICG (Internal Crisis
Group) has reported that during the second half of 2008 and early
2009 there was a growing number of LTTE attacks in the east, both
against the TMVP, including some apparently successful attempts to
infiltrate TMVP offices, and against the police, army and civil
defence personnel. However, there was also credible evidence to
suggest that many of those killed were targeted by the TMVP and
government security forces as LTTE members or supporters, either as
part of the government’s general counterinsurgency strategy or
in response to specific LTTE attacks on, or infiltration of, the
TMVP.
3.6.8
According to UNHCR, while the
immediate impact of the LTTE on the lives of civilians in the East
has been greatly reduced, the TMVP, which now effectively controls
Batticaloa and other parts of the East, is reported to engage in
terror and crime. Incidents of TMVP involvement in abductions, child
recruitment, robberies and repression of dissent are widely
documented. It is also reported that TMVP forces are responsible for
extrajudicial killings, deaths in custody and abductions, which have
apparently been carried out with the knowledge and tacit agreement of
Government actors and local authorities.
Abductions and forced recruitment
by the TMVP group have occurred in IDP camps in Batticaloa and
Trincomalee districts. A series of abductions of young women in
Batticaloa district were believed to be the work of local TMVP
cadres.
69. The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 18 February 2010 set out, inter
alia:
4.26 With regard to the Eastern
Province the same source [The BHC letter of 12 January 2010]
reported that: “Security restrictions in Trincomalee district
have markedly relaxed during 2009...The security situation in
Batticaloa has also improved, although the town is not yet as calm as
Trincomalee and there is still a high military presence. To emphasise
this, in July 2009 a crowd of approximately 300 people gathered to
watch a performance from the British Council forum theatre in a
Batticaloa suburb with no military presence. This would not have been
possible a few months ago. “The police presence is comparable
to Colombo but encouragingly, some do not carry weapons despite being
on duty. “The Senior Superintendent of Police (SSP) for
Batticaloa was proud of the fact that there had been a marked
improvement in the security situation in the district which allowed
his officers not to carry weapons. He was not aware of any remaining
LTTE cadres in the area and considered that most of the cached
weapons had now been seized or could no longer be found as the land
was now overgrown. Reported abductions and low level crime were
minimal. “Church Elders in the Diocese of Trincomalee and
Batticaloa have provided grass roots assessment. They opined that
there was no longer a LTTE presence in the Batticaloa district.
During the latter stages of the conflict, the few remaining LTTE
cadres, mainly youths, had thrown away their weapons and returned to
their families. The community knew who they were but had no concerns
about them re-arming. Community level engagement both with the police
and SLA over the last 9 months had improved considerably. There were
now regular meetings between the various community leaders and the
Deputy Inspector General (DIG) Police and SLA commanders which
allowed them to voice any concerns they had about the paramilitaries,
abductions, harassment by the security forces. As a result, the
paramilitaries were no longer carrying weapons, abductions were low
(and once reported to the community leaders, they were able to raise
it immediately with the DIG) and security check points were no longer
a problem.”
4.27 The BHC letter of 12 January
2010 further observed: “It is apparent that recent security
improvements in the Eastern Province are starting to make tangible
improvements to the people living there. “The Divisional
Secretary (DS) spoke of the extent of development taking place in the
Province with new roads, electricity and telephone lines, much of
which being already visible. There is now a low police and military
presence, and no LTTE. ...”
- The
United Kingdom Border Agency Country of Origin Information Report on
Sri Lanka of 11 November 2010 stated inter
alia:
10.10 A letter from the British High Commission (BHC) in
Colombo, dated 1 September 2010 referred to a programme in the east
related to: “...the rehabilitation and reintegration of many
cadres loyal to the TMVP. This programme was conducted through the
Ministry of Defence who provided lists of former TMVP cadres to the
IOM office in Batticaloa. Technical support for the project was
provided by the UK and IOM conducted a community perception survey to
assess the impact these cadres would have within the local
community.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicants complained that an implementation of the deportation order
to return them 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 applicants
- The
applicants maintained that, in general, returning
ethnic Tamils from the north and east of Sri Lanka would be contrary
to Article 3 of the Convention.
- Moreover,
the applicant husband and his wife would be particularly exposed to
being subjected to treatment contrary to Article 3 of the
Convention by the Sri Lankan authorities or the Karuna group or the
TMVP or the LTTE upon return due notably to the following risk
factors: a) the male applicant was detained by both the Indian Army
and the Sri Lankan Army, suspected of membership of LTTE; b) the male
applicant has several scars: one on his jaw, one on the back of the
head, one on his right leg and one on his left arm; and he has lost
six teeth due to the ill-treatment to which he was subjected during
the said detentions; c) he has made an asylum claim abroad, d) his
cousin was a member of the LTTE; and e) the
applicant was affiliated to the LTTE via his work for them and his
payments to them.
76. In
addition, on arrival at Colombo airport the male applicant would be
at risk of persecution and of being subjected to outrages by the
Sri Lankan authorities. In this respect the applicant pointed
out that he had a visible scar on his jaw and that the Sri Lankan
authorities would have the technological means and procedures in
place to identify failed asylum seekers and those who were wanted by
the authorities. Moreover, the applicants were exposed on the website
of the Refugee Appeal Board and in the media in Denmark, for instance
in connection with the Court’s application of an interim
measure in the case, and the applicants would therefore be at even
greater risk of detention and interrogation upon return.
2. The Government
- The
Government maintained that no violation of Article
3 would occur if the applicants were to be returned to
Sri Lanka and that they
had failed to demonstrate that they would be of sufficient interest
to the authorities as to warrant their detention or interrogation
upon return.
- Firstly,
in the Government’s view it could not be considered a fact that
the applicants had been subjected to actions on the part of the
authorities reflecting that they were of interest to the authorities
prior to their lawful departure in 2005. Repeatedly, the male
applicant explained that he had been detained only in 1988 and 1998
and that thereafter he did not have any problems with the
authorities, but for the regular incidents where he, like the rest of
the village, had his house searched and was questioned in general by
the authorities about his affiliation with the LTTE.
- Moreover,
the male applicant explained repeatedly that the purpose of the
interrogation by the Karuna group in 2005 had been to question him
about his knowledge of his cousin who was a member of the LTTE. The
male applicant maintained that he had not seen the cousin since 2001
and that he was allowed to leave after the interrogations by the
Karuna group.
- Furthermore,
the male applicant consistently maintained that his involvement with
the LTTE had been limited to forced contributions from around 1996
until the tsunami in 2004. This information was taken into account in
various decisions by the Refugee Appeal Board and it was
only in connection with the applicants’ request for a reopening
on 1 August 2008 that the male applicant submitted, as
opposed to his previous statements, that he had carried out jobs for
the LTTE and that in 1998 he had in fact been released from prison at
the request of LTTE so that he could continue to work for them. The
Government found, like the Refugee Appeal Board in
its decision of 17 December 2008, that the latter information had to
be considered fabricated for the occasion and that the applicants’
involvement with the LTTE had been very limited.
- As
regards the risk of detention on arrival at Colombo airport due to
the male applicant’s scars or lost teeth, the Government
pointed out that scarring would only have significance when there
were other factors that would bring the authorities’ attention
to the applicant, and they pointed out that the male applicant had
scars and was missing teeth also at the time of issue of his passport
and his lawful departure from Sri Lanka in 2005.
- Finally,
the Danish authorities had not disclosed any information to the Sri
Lankan authorities about the applicants’ asylum application,
and the applicants have failed to substantiate that the Sri Lankan
authorities have any information thereon from other sources.
- 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 applicants 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 applicants would be of sufficient interest to the authorities in
their efforts to combat the LTTE to warrant their 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 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.
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 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
(§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
37 – 70) 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, on the treatment of
Tamils in Colombo, and on the security situation in Batticaloa and
the Trincomalee district. 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 deterioration in the general situation in Sri
Lanka.
(c) The
applicants’ case
- On
the basis of the foregoing observations, the Court will examine the
applicants’ particular circumstances in order to determine
whether there would be a violation of Article 3 if they were to be
expelled to Sri Lanka.
- In
so far as the applicants’ submissions entail that they 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
first applicant’s own statement, he only assisted the LTTE, as
opposed to being a member, and he has not mentioned having any
previous problems with the LTTE.
- In
assessing the risk to the applicants from the Sri Lankan authorities,
including the former Karuna group or the TMVP, the Court will examine
the strength of the applicants’ claim to be at real risk as a
result of an accumulation of the risk factors identified.
- The
applicants are of Tamil ethnicity and have Tamil features. They are
from Batticaloa in the east of Sri Lanka.
- The
applicant husband is approximately forty-five years old. The
applicant wife is approximately thirty-one years old.
- On
14 September 2005, with valid passports and three month visas, the
applicants left their country lawfully and entered
Denmark, where the applicant husband’s sister and brother lived
permanently.
- In
his request for asylum of December 2005, the applicant husband
explained that he did not sympathise with the LTTE, but that he had
sometimes been forced to support them financially. On 14 August 2006
he added that all fishermen had to pay money to the LTTE. He had
contributed financially from 1996 at one to three month intervals.
After he lost his fishing boat in the tsunami on 26 December 2004 the
LTTE stopped asking him for money.
- He
also explained that in 1988 he had been detained
by the Indian Army for one night and his feet and hands had been
tied. He was released after his eldest brother paid bail for him. In
1998 he was detained by the Sri Lankan Army for two nights
suspected of membership of LTTE. They hit his jaw and left a scar.
Following mediation by members of Parliament, he was released
together with nine other detainees. The applicant was not detained or
ill treated by the authorities up to his departure in 2005.
- After
the applicant had been refused asylum by a final decision of
14 August 2006 by the Refugee Appeal Board, there was a series
of decisions: reopening of those proceedings was refused on 14 March
and 14 August 2007; a residence permit on humanitarian grounds
was refused on 27 August 2007, and a request for reopening of the
asylum proceedings was refused on 29 October 2007. Subsequently, on 1
August 2008, in a new request for a reopening of the asylum
proceedings, the applicant husband alleged that, contrary to what he
had said in previous statements, he had in fact carried out jobs for
the LTTE, such as purchasing batteries, petrol, food and other goods.
Moreover, on both occasions when he had been detained in 1988 and in
1998, it had been due to suspicion of his affiliation with the LTTE
and he had been ill treated, leaving scars on his body and face,
and on the latter occasion it had been the LTTE which requested his
release from prison so that he could continue to carry out work for
them. The
applicants also added that several times since their
departure, persons from the Karuna group and Sri Lankan soldiers had
contacted the applicant wife’s parents, who had been questioned
about the applicants and had their home searched.
- The
Court notes in this respect the Refugee
Appeals Board’s finding on 17 December 2008 that
considering that numerous times the applicant husband had been
requested to provide all relevant information, and that he had on his
own initiative requested a reopening several times with reference to
new information, he had not reasonably explained why he had not
furnished the new information until 1 August 2008. Therefore, the new
information had to be rejected as fabricated for the occasion. The
Court finds no grounds for concluding that such finding was wrong.
Accordingly, it does not find it established that the applicant
husband had supported the LTTE on more than a lower level; that he
had been detained by the authorities since 1998; that thereafter the
applicants had problems with the authorities but
for the regular incidents where they, like the rest of the village,
had their house searched and were questioned in general by the
authorities about their affiliation with the LTTE; and
that upon return they would be of interest to the authorities due to
the first applicant’s previous financial support to the LTTE or
due to his detention in 1988 and 1998.
110. The
applicants submitted that several times in 2005 they were confronted
and threatened by the Karuna group which wanted information about the
first applicant’s cousin, who was a member of the LTTE. Before
the Refugee Appeal Board on 14 August 2006 the applicant husband
explained that he had last seen his cousin at his aunt’s home
in 2001, but only briefly. They did not really talk to each other and
the applicant did not like his cousin due to his involvement with the
LTTE. The applicant did not know where his cousin lived. The
applicant husband also explained that the men from the Karuna group
allowed him to leave after the
interrogations about his cousin in April
and May 2005, and that he escaped in September 2005 when two men
tried to stop him and his wife on their motorcycle.
- In
the Court’s view the fact that the applicant husband’s
cousin was a member of the LTTE carries little weight in the present
case (see NA. v. the United, cited
above, § 146).
Moreover, as mentioned above,
the hostilities between the LTTE and the Sri Lankan Army
ended on 19 May 2009. Thus even if at the relevant time the
Karuna group took an interest in the applicants in
order to get information about the cousin’s whereabouts, there
is nothing to indicate that upon return the applicants will be of
interest to the authorities, including the TMVP,
in their search for the cousin.
- The
applicants maintained that they were at great risk of being detained
and interrogated on their arrival at Colombo airport and the
applicant husband pointed out that besides the scar on his
jaw, he also had scars on the back of the head, on his right leg and
his left arm, and that allegedly he had lost six teeth due to the
ill-treatment to which he was subjected in 1988 and 1998. The Court
observes, however, that the applicant husband did
not have any problems in obtaining a passport or in leaving
the country in December 2005 (see also NA.
v. the United, cited above,
§ 144).
113. Furthermore,
as regards the risk of being arrested at Colombo airport, the Court
reiterates the arrival procedures there (see paragraphs 54 60)
and points out that there is no indication that the first applicant
has ever been recorded by the Sri Lankan authorities in connection
with arrest or detention. Nor is there any indication that
photographs, fingerprints or other means of identification have been
stored by the Sri Lankan authorities in order to enable them to
identify the applicants upon return.
114. 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.
- The
applicants alleged that the various
authorities in Sri Lanka were aware that they were refused
asylum seekers because the applicants had been exposed on the website
of the Refugee Appeal Board and in the media in Denmark, for instance
in connection with the Court’s application of the interim
measure in their case. The Court notes in this respect that an
anonymised summary of the Refugee Appeal Board’s
decision of 14 August 2006 in the
applicants’ case, together with thirty other cases involving
Sri Lankan nationals, was published on the Refugee Appeal Board’s
Website. In the Court’s view, however,
although the applicants’ age, sex and home district were
disclosed, the applicants’ identity could hardly be traceable,
notably since Batticaloa is a rather large town with many
inhabitants. The Court also notes that in the proceedings before it,
the applicants have not asked for anonymity. Nevertheless, even if
anonymity has been granted ex officio by the Court relatively
recently, there are no indications that due to access to the Court’s
internet site or due to earlier references in the Danish press, the
Sri Lankan authorities have become aware that the applicants have
been refused asylum and that they are therefore of special interest
to the authorities upon return.
116. Accordingly,
assuming that the applicants were to be removed through
Colombo airport, taking the above elements into account as well as
various factors such as age and gender, in the Court’s view the
applicants have failed to substantiate that they will be of specific
interest to the Sri Lankan authorities at Colombo airport.
- 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 applicants would be of interest to the Sri Lankan
authorities if they were returned. In those circumstances, the Court
finds that an implementation of the order to deport the applicants to
Sri Lanka would not give rise to a violation of Article 3 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- In
their most recent observations of 8 June 2010 the applicants also
submitted that in the above assessment it should be taken into
account that the female applicant was suffering from Post Traumatic
Stress Disorder, which was confirmed by a psychologist in a
declaration of 6 August 2007 and that this fact should be
seen together with the right for her and her two children to a family
life and a private life as protected by Article 8 of the Convention,
which reads as follows:
“1. Everyone has the right to respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
- The Court reiterates that the purpose of the rule on
exhaustion of
domestic remedies is to afford the Contracting States the opportunity
to prevent or put right the violations alleged against them before
those allegations are submitted to the Court (see, among many other
authorities, Selmouni v. France [GC], no. 25803/94, § 74,
ECHR 1999-V).
- The
applicants failed to raise, either in form or substance, before the
domestic courts the complaint made to it. It follows that this part
of the application is inadmissible for non-exhaustion of domestic
remedies within the meaning of Article 35 § 1 of the Convention
and must be rejected pursuant to Article 35 § 4.
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 applicants 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