CAT/C/41/D/316/2007
Page 6
4.3 As for the complainant’s allegations that he will not receive a fair trial in the United States
because of his race and religion, they fall outside the Committee’s mandate. Accordingly, they
should be declared inadmissible as incompatible with the provisions of the Convention.
4.4 The State party submits that, in addition to proving that an act would constitute torture
under the CAT, in order to show that a State party would be in breach of its non-refoulement
obligations under article 3, an individual must be found to be personally at risk of such
treatment. It is not sufficient to show that there is a consistent pattern of gross, flagrant or mass
violations of human rights occurring in the receiving state. Additional grounds must be adduced
to show that the individual concerned would be personally at risk. The onus of proving that there
is a foreseeable, real and personal risk of being subjected to torture upon extradition or
deportation rests on the applicant. The risk need not be highly probable, but it must be assessed
on grounds that go beyond mere theory and suspicion.
4.5 The State party submits that the complainant has not provided sufficient evidence in
substantiation of his claim that, by extraditing him, Australia will breach article 3 of the
Convention. He simply asserts that there is racial segregation, violence and a high level of
disease in Californian prisons and that prisoners are subjected to solitary confinement and police
brutality, without providing credible evidence to support these assertions. The communication
does not provide any credible evidence that there is a “consistent pattern of gross, flagrant or
mass violations of human rights” in the U.S.
4.6 The complainant’s argument appears to be that there is such a degree of certainty that all
inmates will be subjected to alleged ill-treatment that, undoubtedly, he personally will be
subjected to that treatment after extradition. However, even the unreliable statistics cited in the
complaint do not demonstrate any certainty that a prisoner in the United States will be subjected
to the alleged treatment. There is thus no evidence in the case demonstrating that the
complainant would be subjected to a foreseeable, real and personal risk of the alleged treatment
if extradited.
4.7 The treatment and conditions that the complainant asserts he will face if extradited to the
USA, even if proven, would not amount to torture under the definition in article 1 of the
Convention. Nor does the communication demonstrate that any pain or suffering would be
intentionally inflicted upon him for one of the reasons set out in article 1 of the Convention, or
would be inflicted by or at the instigation of or with the consent or acquiescence of a public
official, or person acting in an official capacity. Accordingly, the State party submits that the
complaint is inadmissible as incompatible with the provisions of the Convention.
4.8 The State party submits that the complaint does not even on a prima facie base substantiate
the allegation that the complainant will be segregated from persons of other racial backgrounds
in a Californian prison, or that this would constitute torture under the Convention. In the
alternative, it submits that this allegation is inadmissible as incompatible with the provisions of
the Convention. Even if the allegation of racial segregation were proven, it would not amount to
torture under the Convention. Furthermore, there is nothing to suggest that by extraditing the
complainant to the United States, where he may be segregated from prisoners of other racial
backgrounds for a period, he would be in danger of torture. There is no evidence to suggest
either that the policy of racial segregation in Californian prisons was intended to inflict severe
pain and suffering for reasons based on racial discrimination. It therefore does not constitute