CEDH · PRESS;GENERAL;ENG — 17 février 2004

.s800EAC49 { font-size:12pt } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .sBB9EE52A { font-family:Arial } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .s29100277 { font-family:Arial; font-weight:bold } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s7ED160F0 { text-decoration:none } .s33165EBA { font-family:Arial; font-size:8pt; vertical-align:super; color:#0069d6 } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .sA36B60A1 { font-family:Arial; font-style:italic } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sADADF4A7 { font-family:Arial; text-decoration:underline } .s9F8EB0C0 { width:18.63pt; display:inline-block } .s9E97F54A { width:85.05pt; display:inline-block } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 } 17.02 EUROPEAN COURT OF HUMAN RIGHTS 080 17.02.2004   Press release issued by the Registrar   CHAMBER JUDGMENTS THAMPIBILLAI v. THE NETHERLANDS AND VENKADAJALASARMA v. THE NETHERLANDS   The European Court of Human Rights has today notified in writing two judgments, neither of which are final [1] , in the cases of Thampibillai v. Netherlands (application no. 61350/00) and Venkadajalasarma v. Netherlands (application no. 58510/00). (Both judgments are available only in English.)   The Court held, unanimously in the case of Thampibillai v. Netherlands , and, by six votes to one in Venkadajalasarma v. Netherlands , that the expulsion of the applicants to Sri Lanka would not violate Article 3 (prohibition of torture or inhuman or degrading treatment) of the European Convention on Human Rights.   1.     Principal facts   The applicants are both Sri Lankan nationals: Tharmapalan Thampibillai, born in 1973 and currently living in Oosterbeek (the Netherlands) and Ramachandraiyer Venkadajalasarma, born in 1958 and currently living in Heerlen (the Netherlands).   Both applicants belong to the Tamil population group. Mr Thampibillai comes from a farming family in the town of Vavuniya in the north of Sri Lanka, bordering on an area controlled by the Tamil Tigers (the “LTTE”), a Tamil terrorist organisation, engaged in an armed struggle for independence. Mr Venkadajalasarma, who is married with two children, lived in the town of Jaffna on the Jaffna peninsula, an area also controlled by the LTTE.   Mr Thampibillai submitted that in August 1990 his father was shot dead by the Sri Lankan Army because they suspected him of helping the LTTE. As a result, his brother joined the LTTE. On 12 January 1991 the applicant was arrested and detained for two weeks by the Sri   Lankan Army who interrogated him concerning his brother’s whereabouts. The applicant was beaten and hung from the ceiling by his thumbs and afterwards required hospital treatment for two weeks. He was released on condition that he report to the army camp daily. Because he could no longer cope either physically or mentally with the daily reporting duty, the interrogations, the ill-treatment and having to identify LTTE members, he decided to leave the country. He knew of people with a similar reporting duty who had disappeared and feared the same thing could happen to him. He travelled to the airport in Colombo and flew out of the country on 20 May 1994 using his own passport.   He later received two letters from his mother stating that she had been arrested and detained for two days by the army, and that the army were searching for him because he had failed to report. He did not keep the letters.   Mr Venkadajalasarma submitted that, from January   1994, the LTTE forced him to transport foodstuffs as well as its members two or three times a month. In March 1995 the LTTE confiscated his minibus - with which he made his living - because he had refused to transport bombs for them. They subsequently forced him to work in their kitchens and to help dig trenches. He went into hiding when required to join the LTTE; two friends of his having been shot dead by the LTTE when they had refused to join.   He decided to go to Colombo and, on 1 October 1995, went to the army camp at Vavuniya to apply for the required travel pass, where he was detained on suspicion of being an LTTE supporter. He claims he was, among other things, undressed and beaten with a small iron rod, stabbed with a knife and that he was strung up and beaten. After being paraded before an informant – who did not recognise him - he was released without charge two days later and issued with a travel pass on condition that he return from Colombo within a week. As he was not allowed to settle in Colombo, and he could not go back to Jaffna because of his problems with the LTTE, he decided to leave Sri Lanka. He left the country using his own passport.   Mr Thampibillai and Mr Venkadajalasarma arrived in the Netherlands on 9 January 1995 and 2 November 1995 respectively, where, on 10 January 1995 and 3 November 1995, they applied for asylum or, alternatively, a residence permit for compelling reasons of a humanitarian nature ( klemmende redenen van humanitaire aard ). Both applicants’ requests for asylum and residence were refused.   2.     Procedure and composition of the Court   Thampibillai v. Netherlands was lodged with the Court on 30 August 2000 and Venkadajalasarma v. Netherlands on 7 April 2000. The Court applied Rule 39 (interim measures) of the Rules of Court in both cases, indicating to the Netherlands Government that the applicants should not be expelled to Sri Lanka pending the Court’s decision. On 9 July 2002, the Court declared Thampibillai v. Netherlands admissible and Venkadajalasarma v. Netherlands partly admissible.   Judgment in both cases was given by a Chamber of seven judges, composed as follows:   Jean-Paul Costa (French), President , Loukis Loucaides (Cypriot), Corneliu Bîrsan (Romanian), Karel Jungwiert (Czech), Volodymyr Butkevych (Ukrainian), Wilhelmina Thomassen (Netherlands), Antonella Mularoni (San Marinese), judges , and also Lawrence Early , Deputy Section Registrar .   3.     Summary of the judgments [2]   Complaints   Both applicants complained that their expulsion to Sri Lanka would place them at risk of torture or inhuman and degrading treatment, relying on Article 3 (prohibition of torture or inhuman and degrading treatment) of the Convention.   Decision of the Court   Article 3   The security situation in Sri Lanka Referring to various international reports, the Court noted that the security situation in Sri Lanka had improved considerably in recent years: for some time, no round-ups and no large-scale and/or arbitrary arrests of Tamils had taken place, Tamils no longer required prior permission before travelling to certain areas and people arrested on suspicion of membership of, or involvement in, the LTTE were no longer subjected to ill-treatment and torture.   The situation in Sri Lanka could not yet be described as stable, however, as recent political developments illustrated.     On 4 November 2003, Sri Lankan President Chandrika Kumaratunga suspended parliament and sacked three senior ministers, accusing the Government of making too many concessions to the LTTE. On 14 November 2003, Norwegian mediators said, after talks with the LTTE, that the peace process was on hold until the country’s political crisis was resolved. Nevertheless, and bearing in mind that the main parties to the conflict had emphasised their commitment to the peace process in spite of these developments, the Court could not ignore the very real progress that had been made which had led to a substantial relaxation of the previously precarious situation for Tamils arriving or staying in Colombo.   Thampibillai - The Court observed that the applicant left Sri Lanka in May 1994, almost four years after his father was killed by the army and some three-and-a-half years after he was arrested by the army and detained. According to the applicant, he left because he could no longer endure the ill-treatment to which he was subjected every time he complied with the obligation imposed on him to report to the army.   Despite the applicant’s fears, it had not been established that the authorities harboured any suspicions that he was involved in the LTTE: after his arrest and detention in January 1991, he was released without charge and not arrested again; and, in May 1994, he was allowed to travel unhindered to Colombo and to leave the country through the regular channels with a passport in his own name. The Court found that it had not been established that the applicant was known to the authorities as a (suspected) LTTE supporter and that they would therefore have had an interest in him.   The Court noted that the applicant submitted that his mother had been arrested and detained for two days. However, the applicant did not keep the relevant letters and it did not appear, nor had it been alleged, that she had experienced problems with the Sri Lankan authorities since that time. The Court did not, therefore, consider it likely that the authorities were still looking for the applicant, almost ten years after he left the country. Neither was the Court willing to accept that, in the current climate, the authorities intended to apprehend the applicant in order to discover the whereabouts of his brother, especially since it did not appear that the applicant’s mother had been questioned by the authorities on the matter.   Finally, the Court noted that Tamils were free to travel throughout the whole country without requiring prior permission to enter certain areas, and that there had been a sharp reduction in roadblocks and checkpoints around the country. Therefore, should the applicant remain fearful of the Sri Lankan authorities, he might be expected to settle in LTTE-controlled areas.   Venkadajalasarma   - The Court noted that the applicant went to an army camp to apply for a travel pass to Colombo. It would appear, therefore, that he had no reason to believe that he was suspected of LTTE involvement. He was nevertheless arrested and detained by the army on suspicion of being an LTTE supporter, tortured and ill-treated, and confronted with an informant. Not having been recognised by the informant, he was released without charge two days later. In view of the fact that he was also issued with the requested travel pass, the Court considered it unlikely that the army were aware of the applicant’s activities for the LTTE. In those circumstances, the Court found that it had not been established that the applicant was known to the authorities as a (suspected) LTTE supporter and that, therefore, they would have had an interest in him.   The Court noted that the applicant provided only relatively low-level support to the LTTE, and under duress, which was unlikely to lead the Sri Lankan authorities to believe that he could be a high-profile member of the LTTE in whom they might still be interested.     In both cases, the Court considered that, even if the applicants were apprehended on arrival at the airport in Colombo or subsequently in the course of an identity check, given the current climate in Sri Lanka, it was unlikely that they would run a real risk of being subjected to ill-treatment.   Having regard to the particular circumstances of both cases, the Court found that no substantial grounds had been established for believing that the applicants, if expelled, would be exposed to a real risk of being subjected to torture or inhuman or degrading treatment. Their expulsion to Sri Lanka would not, therefore, be in violation of Article 3.     Judge Mularoni expressed a dissenting opinion which is annexed to the judgment   ***   The Court’s judgments are accessible on its Internet site ( http://www.echr.coe.int ).   Registry of the European Court of Human Rights, F – 67075 Strasbourg Cedex Press contacts:   Roderick Liddell (telephone: +00 33 (0)3 88 41 24 92)   Emma Hellyer (telephone: +00 33 (0)3 90 21 42 15)   Stéphanie Klein (telephone: +00 33 (0)3 88 41 21 54) Fax: +00 33 (0)3 88 41 27 91   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. Since 1 November 1998 it has sat as a full-time Court composed of an equal number of judges to that of the States party to the Convention. The Court examines the admissibility and merits of applications submitted to it. It sits in Chambers of 7 judges or, in exceptional cases, as a Grand Chamber of 17 judges. The Committee of Ministers of the Council of Europe supervises the execution of the Court’s judgments. [1] Under Article 43 of the European Convention on Human Rights, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. [2] This summary by the Registry does not bind the Court.