DISSENTING OPINION OF JUDGE RUSSO

(Translation)

I share the opinion of the minority of the Commission and take the view that there has been a violation of Article 3 (art. 3) of the Convention in the present cases for the following reasons:

Article 3 (art. 3) forms part of the "hard core" of the Convention and does not permit of derogation, even in the circumstances covered by Article 15 (art. 15): it is therefore necessary to make every effort to ensure that the scope of a right of such fundamental importance for the protection of human rights is not restricted.

I am not unmindful of the fact that the refugee question is one which concerns all the countries of Europe and even of the world: my country - Italy - very recently experienced a difficult situation with more than 20,000 Albanians seeking political asylum. A balance has to be struck between the general interest of the host country and the individual interests of asylum seekers.

National authorities cannot be required to accept a group solely because its members belong to a minority; that would generate problems of a dimension far exceeding the real capacities of the States. In the present case therefore, even though they belong to a minority which has in fact been persecuted, it cannot be asserted that all the Tamils have the right to be accepted. However, on the facts of these cases, as indeed the minority of the Commission stressed in its separate opinion, "even on the Government ’ s analysis of the situation in Sri Lanka in February 1988 the applicants faced a real risk of severe ill-treatment on return to that country". This conclusion is confirmed by the opinions of associations or organisations especially well- qualified in this field, such as the British Refugee Council, the Office of the United Nations High Commissioner for Refugees or Amnesty International. The Adjudicator recognised that the applicants ’ arguments were valid and the Government drew the correct conclusions from this by paying the applicants ’ travel expenses for their return. They therefore ran a real risk of persecution and threats to their person.

I accordingly have no doubt that there has been a violation of Article 3 (art. 3) of the Convention.

I have also voted for a violation of Article 13 (art. 13), for the reasons given by Judge Walsh in his dissenting opinion.

[*]  The case is numbered 45/1990/236/302-306.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]    The amended Rules of Court which entered into force on 1 April 1989 are applicable to the present case.

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 215 of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.