CAT/C/20/D/94/1997
page 4
5.1
In its observations, dated 19 January 1998, the State party informs the
Committee that the necessary measures have been taken to suspend the author's
expulsion. While recognizing the importance of interim measures of protection
to guarantee a person's effective recourse to the Committee under article 22
of the Convention, the State party notes that the possibility of demanding
interim measures is not foreseen in the Convention itself and that
article 108 (9) is just a rule of procedure. According to the State party,
the individual communication to the Committee is and should remain an
exceptional remedy, not the automatic follow-up after exhaustion of domestic
remedies. The regular issuing of requests under rule 108 (9) could interfere
with the subsidiary nature of the communications procedure.
5.2
The State party is of the opinion that the Committee should only use the
procedure under rule 108 (9) when there is a prima facie important and serious
risk that someone would be subjected to torture if deported. The State party
expresses its concern about the fact that the Committee has requested to
suspend the expulsion in nine out of the 16 cases concerning Switzerland. It
notes that the exception thus has become the rule. The State party considers
that this use of rule 108 (9) is unjustified in the majority of cases, and
shows a lack of understanding of the seriousness with which the Swiss
authorities examine the applicant's situation. In the instant case, the State
party fails to understand the reasons which made the Committee issue a request
for interim measures.
6.
With regard to the admissibility of the present communication, the State
party states that it is not aware of the case having been submitted to another
instance of international investigation or settlement. The State party does
not contest the admissibility for failure to exhaust domestic remedies either.
7.1
Concerning the merits of the communication, the State party recalls the
text of article 3 of the Convention, as well as the Committee's jurisprudence
in this respect. It notes that the author bases his complaint mainly on his
short detention by the Sri Lanka security forces on suspicion of belonging to
the Tamil Tigers LTTE and on reports that the Sri Lanka security forces were
looking for him, after his brother joined the LTTE. According to the author,
he would risk to be subjected to torture because he belongs to the Tamil
minority, and because of his age he would be recruited into the LTTE.
Further, he would be suspected of belonging to the LTTE because of his
brother's membership.
7.2
The State party submits that the facts as presented by the author have
not been the object of a thorough examination by the authorities, as his
request for asylum was rejected following the existing case law, since he
mainly invoked the situation in his country as ground for asylum and no
personal grounds of persecution. The fact that the authorities have not
challenged the facts as presented by the author can thus not be taken to
indicate that they accepted them as established. Indeed, the ODR, in its
decision of 30 October 1996, expressed doubt with regard to the likelihood
of some of the events recounted by the author.
7.3
According to the State party, the facts as presented by the author in
any event fail to show the existence of grounds for believing that he would
be personally in danger of being subjected to torture upon his return to