European Court of Justice: Torture victims have grounds for asylum

24.04.2018

Tortured asylum-seekers can claim subsidiary protection in Europe, if on return to their home countries adequate medical care would be withheld, says the European Court of Justice. The case involves a Sri Lankan.

The European Court of Justice (ECJ) ruled Tuesday that protection applied under the European Convention on Human Rights if the health of an asylum applicant with severe physical or psychological after-effects from past torture would be "significantly and irreversibly worsened" by the lack of treatment in his or her country of origin.

Britain's Supreme Court – handling the appeal case of a Sri Lankan who said he was once a Tamil Tiger rebel member tortured by Sri Lankan forces – had asked the Luxembourg-based court to rule on the scope of the EU's 2004 directive that sets minimum standards known as "subsidiary protection"for third country nationals or stateless persons.

The ECJ said it was now up the British justice to decide in the Sri Lankan's case whether his health would be endangered by a lack of adequate treatment on return.

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The Sri Lankan, identified in ECR documents only as "MP," has arrived in Britain in 2005 as a student, but in 2008 he was refused permission to remain.

Protection applies if treatment withheld, said Bot

He submitted an asylum application in 2009, saying that in Sri Lanka he had been tortured by security forces as a member of the rebel Liberation Tigers of Tamil Eelam (LTTE), resulting in post-traumatic stress disorder and depression.

MP's asylum application was initially rejected. Several appeal hearings brought the case before Britain's Supreme Court, which in turn asked the ECJ to rule on the scope of the directive in the context of European and international conventions.

Advocate General sets case in context

If returned, he seemed suicidal and determined to kill himself, wrote Yves Bot, one of 11 ECJ advocates general, in his opinion submitted last October.

Bot said Sri Lanka – as the nation accused of committing the torture – was required under the international 1984 Convention against Torture to provide rehabilitation and redress to the claimant, and, in the event of his death, to his dependents.

The "inadequacy" of Sri Lanka's health system was not contested, said Bot, and it was "solely" up to a national (EU member nation) court to assess whether the man, if returned, would remain protected from ill-health in terms of the ECHR.

"It is established case-law that the application of EU law must be independent of that of international humanitarian law," wrote Bot, adding that international law and the 2004 directive pursued "different aims and establish quite distinct protection mechanisms."

Sri Lanka still unheeding

Sri Lanka's 26-year civil war ended in 2009, but various United Nations agencies have since observed that the island nation's draconian Prevention of Terrorism Act remains in place amid reports of deaths in custody and forced confessions.

Last November, European lawmakers decried a slow roll-out of human rights reforms and allegations of torture in Sri Lanka.

Under EU directives, the term "subsidiary protection" applies to a third country national or a stateless person who does not qualify as a refugee but "would face a real risk of suffering serious harm" such as the death penalty or execution, torture, or serious threat if sent back to the country of origin.

ipj/kms (KNA, AFP)

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