United Nations Human Rights Website - Treaty Bodies Database - Document - Jurispr... Page 7 of 15 adjudicator made an error in law or whether his findings of fact were perverse, capricious or patently unreasonable. Whether or not the author agreed with the decision, it was not possible to attack it on any of these grounds based on the evidence presented. Counsel's duty is to determine whether it is in the client's best interest to pursue an appeal when there is little merit in doing so. Counsel would hesitate to launch a frivolous application before the courts simply to delay further proceedings. State party's comments on the failure to observe the Committee's request under rule 108 (9) of its rules of procedure 8.1 On 24 June 1998 the Committee invited the State party to submit written comments on the failure to observe the request not to expel the author to India while his communication is under consideration by the Committee. 8.2 In its response to the Committee the State party indicates that an interim measures request is a recommendation to a State to take certain measures, not an order. Support for this proposition may be found not only in the word employed ("request") in rule 108, paragraph 9, but also in the European Court of Human Rights decision in Cruz Varas and Others v. Sweden. The Court stated the following with respect to the legal status of an interim measures request: "Firstly, it must be observed that Rule 36 [regarding interim measures] has only the status of a rule of procedure drawn up by the Commission ... In the absence of a provision in the Convention for interim measures an indication given under Rule 36 cannot be considered to give rise to a binding obligation on Contracting Parties." 8.3 Pursuant to rule 108, paragraph 9, an interim measures request may be issued in order to avoid "irreparable damage" to an author. The State party submits that the examination of possible irreparable harm should be a rigorous one, particularly when the individual concerned was found to represent a danger to the public or, as in the author's case, whose continued presence in the State was determined to be contrary to the public interest. On the basis of the documentary evidence submitted by the author as well as their own evidence regarding the author's risk upon removal to India, the authorities concluded that the risk was minimal. Moreover, a judge of the Federal Court Trial Division determined that the risk to the author was not sufficient to justify a stay of his removal. 8.4 The Government of Canada first became aware that the petitioner had submitted a communication, including a request for interim measures, when the author's counsel alluded to the Committee's granting of the request during a discussion with a CIC official on 18 December 1997, three months after the Committee had received the author's communication and request for interim measures. The record before the Committee reveals that the interim measures request was issued, after several appeals by the author's counsel to the Committee, a few days before his scheduled removal. The Government of Canada was not aware of these appeals nor was it given the opportunity to comment on these ex parte communications with the Committee. 8.5 In summary, irrespective of their legal status, interim measures requests received from the Committee are given serious consideration by the State party. However, the State party determined that the present case was not an appropriate one for a stay to be granted in light of the above-mentioned factors and in particular: (a) the prima facie absence of substantial personal risk to the author, as determined by the risk assessment conducted; (b) the fact that the continued presence in Canada of a convicted terrorist would be contrary to the public interest; and (c) the non-binding nature of the Committee's request. Counsel's comments 9.1 Counsel contends that it has never been his position that the State party was legally obliged to comply with the Committee's interim measures request.He does argue, however, that the Canadian public would normally expect its Government to comply with a request from the United Nations. This is consistent with convention, past practice and the State party's self-image as a humanitarian member of the international community. http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/cfeacf290af5c026c125693d0038... 26.02.2008