G. Retaliation against victims, witnesses and any other person acting on
behalf of torture victims
61. Protection against torture extends to those who act on behalf of torture victims.
As such, the Special Rapporteur on Torture will intervene when measures of
retaliation are taken or threatened against victims of torture, their relatives,
members of civil society, lawyers working on torture complaints and medical or
other experts acting on behalf of torture victims.
62. Article 13, CAT states: ‘Each State Party shall ensure that any individual who
alleges he has been subjected to torture in any territory under its jurisdiction
has the right to complain to, and to have his case promptly and impartially
examined by, its competent authorities. Steps shall be taken to ensure that the
complainant and witnesses are protected against all ill-treatment or intimidation
as a consequence of his complaint or any evidence given’.383
H. Expulsion, Deportation, Rendering and Extradition
63. It is a guiding principle of human rights law that a State is not absolved of its
human rights responsibilities where it returns an individual to another State
where that individual is then exposed to a real risk of a violation of his or her
core human rights by that receiving State or a third State.384
64. The absolute nature of protection from torture or inhuman or degrading
treatment means that it would violate the right to protection from torture,
inhuman and degrading treatment to deport (refoulement), render or extradite
an individual in the knowledge that they will be tortured or subject to inhuman
or degrading treatment.385 The principle of non-refoulement prohibits the
expulsion of persons to States where there are substantial grounds for believing
they would be at risk of torture or other serious human rights violations.386
65. Whether the State is regarded as being aware of the risk of ill-treatment if the
applicant is removed includes not only actual knowledge, but also constructive
knowledge, i.e. situations in which the State must have known of the risk. 387
66. The risk of such treatment has to be ‘personal and present’. A mere suspicion
of torture is insufficient to engage this protection, but the test need not meet the
standard of being highly probable.388
383
See also Istanbul Protocol, para 2(b).
This obligation extends to circumstances where the individual is at risk from non-State actors and
the receiving State is either unwilling or unable to protect the individual from these non-State agents.
385 Article 3 UNCAT, Article 33, Convention Relation to the status of Refugees. Soering v UK, European
Court of Human Rights, 7 July 1989.
386 See e.g. N v Sweden, 20 July 2010, a case involving a deportation order to Afghanistan of a woman
separated from her husband, where the European Court found a violation of Article 3. See also e.g.
Auad v Bulgaria, 11 January 2012, where the Court emphasised the ’lack of a legal framework providing
adequate safeguards’ in the respondent State and stressed the need for ‘rigorous scrutiny’. See also
e.g. Iskandarov v Russia, 21 February 2011
387 Garabayev v Russia, 30 January 2008.
388 CAT General Comment No.1, U.N. Doc. A/53/44, annex IX at 52 (1998).
384
77
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents