CDL-AD(2006)009
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139. In this context, it is worth underlining that Council of Europe member States are under an
obligation to prevent prisoners’ exposure to the risk of torture: the violation does not depend on
whether the prisoner is eventually subjected to torture.
140. The assessment of the reality of the risk must be carried out very rigorously. The risk
assessment will depend upon the circumstances, meaning both the rights which risk being
violated and the situation in the receiving State. The diplomatic assurances which are usually
provided by the requesting State in order to exclude human rights breaches in its territory after
the extradition or deportation is carried out may be appropriate as concerns risks of application
of the death penalty86 or for fair trial violations, because such risks can in most instances be
monitored satisfactorily. On the other hand, as regards the risk of torture, monitoring is
impracticable in the vast majority of conceivable cases, especially bearing in mind the fact that,
even after conviction in a criminal case, a State may torture a prisoner for the purpose of
obtaining information. At the same time, it is impracticable to have a “life-long” responsibility
for people who are removed out of the country.
141. This situation raises the question of the value of diplomatic assurances87. In the Venice
Commission’s view, the acceptance of such assurances is in principle the expression of the
necessary good faith and mutual trust between friendly States, although, as far as assurances
may be regarded as acceptable in principle (see para. 142 below), the terms of the diplomatic
assurances need to be unequivocal (for instance, a reference to “torture” or to “inhuman or
degrading treatment” should be interpreted within the meaning given to these terms by the
ECtHR, the CAT and the HR Committee) and need to reflect the scope of the obligation by
which the State which issues them is legally bound.
142. However, this general mutual trust must not prevail over the accurate examination of each
specific situation, particularly if there are precedents or even patterns of violation of previously
accepted assurances88. For example, an important difference between the situation in the
Mamatkulov case (see para. 71 above) and later ones is that recent experience has shown that the
risk of torture seems to be greater than what was known before, despite assurances. In the
Commission’s view, under these circumstances the room for accepting guarantees against
torture is reduced significantly. Where there is substantial evidence that a country practices or
permits torture in respect of certain categories of prisoners, guarantees may not satisfactorily
reduce this risk in cases of requests for extradition of prisoners belonging to those categories.
143. The requirement of not exposing any prisoner to the real risk of ill-treatment also applies in
respect of the transit of prisoners through the territory of Council of Europe member States:
member States should therefore refuse to allow transit of prisoners in circumstances where there
is such a risk.
86
And is indeed required: see European Court of Human Rights, Nivette v. France judgment of 3 July 2001,
in which the European Court of Human Rights found that extradition to a State imposing the death sentence violated
Protocol 6.
87
The Council of Europe Steering Committee on Human Rights (CDDH) has set up a Group of Specialists
with the task of “reflection on the issues raised with regard to human rights by the use of diplomatic assurances in
the context of expulsion procedures; and consider the appropriateness of a legal instrument, for example a
recommendation on minimum requirements/standards of such diplomatic assurances, and, if need be, present
concrete proposals”.
88
See European Committee for the Prevention of Torture and Inhuman and Degrading Treatment, 15th
General Report on the CPT’s activities, §§39-40, at http://www.cpt.coe.int/en/annual/rep-15.htm.
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