The authors are nine Sri Lankan nationals of Tamil ethnicity (T.N., S.N., S.S., P.K., N.S. and others) who have been refused asylum in Denmark and have been ordered to return to Sri Lanka. They are all of Tamil ethnicity with Tamil features and all had connections (directly or through their families) with the Liberation Tigers of Tamil Eelam, “Tamil Tigers” (LTTE), a separatist militant organization involved in the Sri Lankan civil war from 1983 to 2009.
The authors presented their complain to the ECHR. Relying in particular on Article 3 of the Convention, all the authors alleged that, if deported to Sri Lanka, they would be at risk of persecution and ill-treatment by the Sri-Lankan authorities, notably due to their connections with the LTTE. All the applicants (except those in the case S.S. and Others) also claimed that they risked ill-treatment at the hands of the LTTE if returned.
In all five cases, the Court maintained its approach as set out in its lead judgment N.A. v. the United Kingdom that there was not a general risk of treatment contrary to Article 3 to Tamils returning to Sri Lanka. The protection of Article 3 would enter into play only where an author could establish that there were serious reasons to believe that s/he would be of sufficient interest to the authorities to warrant her/his detention and interrogation upon return. The assessment of whether there was a real risk had therefore still to be made on a case by case basis considering all relevant factors which might 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 center 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 reiterated that a number of individual factors might not, when considered separately, constitute a real risk, but might do so when taken cumulatively, depending on the overall situation in Sri Lanka at the relevant time.
For those applicants complaining that they risked ill-treatment from the LTTE, the Court noted that the hostilities between the LTTE and the Sri Lankan Army ended in 2009. T.N. left the organization in 1994 and had not demonstrated that she had a high profile as an opposition activist or that she was seen by the LTTE as a renegade or a traitor. In T.N. and S.N. T.N. only assisted the LTTE, as opposed to being a member, and both he, and P.K had not mentioned having any previous problems with the LTTE. N.S. only assisted the LTTE, as opposed to being a member, and the last time he had worked for them was in 1997, which apparently had not led to any problems.
In all five cases, having regard to the current general situation in Sri Lanka taken cumulatively with the risk factors identified above, the Court found that there were no substantial grounds for finding that any of the authors would be of interest to the Sri Lankan authorities if returned. It therefore found that an implementation of the order to deport the authors to Sri Lanka would not give rise to a violation of Article 3.
In its reasoning in four cases the Court found, among other things, that the applicants had never been recorded by the Sri Lankan authorities in connection with arrest or detention; nor was there any indication that photographs, fingerprints or other means of identification had been stored by the Sri Lankan authorities to identify them on their return. N.S. had failed to substantiate that he would be of interest to the authorities on his return. Even if his photo had been taken in connection with his arrest, from 1991 until his departure in 1997 he was not detained or questioned, no picture or fingerprints were taken, nor was he in any other way the object of interest from the Sri Lankan authorities.
In the cases T.N. v. Denmark (no. 20594/08), T.N. and S.N. v. Denmark (no. 36517/08), S.S. and Others v. Denmark (no. 54703/08), P.K. v. Denmark (no. 54705/08) and N.S. v. Denmark (application no. 58359/08), the ECHR found no violation of Article 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights if orders to deport the authors to Sri Lanka were to be implemented.
21. November 2023