DISSENTING OPINION OF JUDGE MULARONI

I disagree with the majority's conclusion that there would be no violation of Article 3 of the Convention if the applicant were to be expelled to Sri Lanka.

The applicant belongs to the Tamil population group and was subjected to ill-treatment and torture in his country. As confirmed by a physician attached to Amnesty International's Medical Examination Group in January 2000, there are quite a number of scars on the applicant's body, some possibly caused by knives, others possibly caused by the putting-out of cigarettes. The applicant was traumatised as a result of his experiences in Sri Lanka (§ 29 of the judgment).

I do not question the current improvement of the human rights situation in Sri Lanka, even if the political situation is far from stable. However, in the light of the relevant international materials at our disposal, and especially NGO reports and statements, I consider that there is still a danger for the applicant that he will, if expelled, be exposed to a real risk of being subjected to inhuman or degrading treatment.

I have noted in particular the declarations made by the Medical Foundation for the Victims of Torture (§ 50 of the judgment) and by the United Nations High Commissioner for Refugees (§ 51 of the judgment). They both emphasise that torture-related scars on the body of a returnee should be a relevant consideration in assessing the likelihood of danger upon the return of Sri Lankan Tamil asylum seekers.

I find unconvincing the reasoning of the majority leading to the conclusion that there would be no violation of Article 3 if the applicant were to be returned. The Court had at its disposal quite a number of documents on the current human rights situation in Sri Lanka (see Part III - Relevant International Material - §§ 46-52 of the judgment), but, and I find this rather strange, only part of this material was used. In particular, no reference has been made to all the pertinent documentation of Amnesty International, the Medical Foundation for the Victims of Torture or the United Nations High Commissioner for Refugees (see in this respect § 66 of the judgment). I believe that reports or statements made by NGOs or by international entities as to human rights situations in particular parts of the world should receive greater consideration.

I have great difficulties in accepting the statements that, “given that the applicant has not yet been expelled, the material point in time is that of the Court's consideration of the case” and “it is the present conditions which are decisive for the solution of the case” (see § 63 of the judgment, quoting the Chahal v. the United Kingdom and the H.L.R. v. France judgments). The adoption of this principle (which I fully agree should be applied when the situation in the country of destination has deteriorated since the adoption of the final decision at national level) in a case like the present one seems to

me tantamount to rendering compatible with the Convention any national decision of expulsion, even to a country where the risk for the applicant of being subjected to inhuman or degrading treatment is extremely high, provided that the respondent State waits for the “right moment” to expel the applicant. However, even accepting this principle, which has been reiterated in some judgments of the Court, I nevertheless consider that there still exists for the applicant, if expelled, a real risk of exposure to torture or inhuman or degrading treatment within the meaning of Article 3 of the Convention.

Accordingly, I consider that the expulsion of the applicant to Sri Lanka would be in violation of Article 3 of the Convention.