46
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
with little experience, questionable independence and virtually no power to
hold the Government to account, it was able to ensure the safety of a person
returned under the MOU.
B. Complaints relating to Article 3 of UNCAT
147. As stated paragraph 127 above, Article 3 of UNCAT prevents
refoulement where there are substantial grounds for believing that someone
will be subjected to torture. In Agiza v. Sweden (communication
no. 233/2003, decision of 20 May 2005), the complainant had been
convicted in absentia by an Egyptian court in 1998 of terrorist activity. In
2000 he claimed asylum in Sweden. His claim was rejected and he was
deported to Egypt in December 2001 where he alleged he was tortured. It
appears from the decision of the Committee that, while the claim was being
considered, Swedish Government officials met representatives of the
Egyptian Government in Cairo and obtained guarantees from a senior
official that the complainant would be treated in accordance with
international law on return.
148. In examining his complaint under Article 3 of UNCAT, the
Committee considered that the Swedish authorities knew, or ought to have
known, of consistent and widespread use of torture of detainees in Egypt,
particularly those detained for political or security reasons. Sweden was also
aware that the complainant fell into this category and of the interest of
foreign intelligence services in him. Swedish police officers had also
acquiesced in ill-treatment by agents of an unspecified foreign State
immediately before the complainant’s expulsion. These factors meant
Sweden’s expulsion was in breach of Article 3. In the Committee’s view:
“the procurement of diplomatic assurances, which, moreover, provided no
mechanism for their enforcement, did not suffice to protect against this
manifest risk.”
149. The Committee also found that Sweden was in breach of its
procedural obligations under the same Article to provide an effective,
independent and impartial review of the expulsion decision since it had been
taken by the Swedish Government without recourse to the normal appeals
process for asylum decisions. Sweden, by immediately removing the
applicant after that decision, had also breached its obligations under
Article 22 of the Convention to respect the effective right of individual
communication with the Committee.
150. In Pelit v Azerbaijan, communication no. 281/2005 decision of
29 May 2007, the complainant was extradited from Azerbaijan to Turkey,
despite the Committee’s interim measure indicating that it refrain from
doing so until it had considered the case. It appears that, before surrender,
Azerbaijan had obtained assurances against ill-treatment from Turkey and
made some provisions for monitoring after surrender. The Committee found
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