CAT/C/47/D/368/2008 Appendix Individual opinion of Committee member Ms. Felice Gaer (partially dissenting) 1. In the present case, the author of the communication and the State party concerned disagree fundamentally over certain key facts critical to the determination of whether or not a violation of article 16 of the Convention was committed. Without objecting to the Committee’s ultimate decision in this case that a violation occurred, I respectfully disagree with the methodology it claims to have applied in resolving the dispute regarding the alleged violation of article 16. 2. In this case, the Committee is presented with an allegation by the author that officers of the Spanish Civil Guard took her brother, Lauding Sonko, and his companions on board their vessel, punctured three of the four dinghies they had previously been using, and threw them into the sea at a depth at which they could not stand, despite the protestations of her brother that he could not swim, with the result that Mr. Sonko subsequently drowned. The State party confirms that its Civil Guard officers did in fact take Mr. Sonko and his companions on board their vessel and subsequently “released them”, but argues that they did so “in an area very close to the shore”, and did not puncture the dinghies. Thus, the State party alleges, the death of Mr. Sonko was “an unfortunate accident” rather than an act of cruel, inhuman, or degrading treatment or punishment. 3. The Committee’s task in this instance is to determine whether a violation of article 16 of the Convention occurred. Surely, the Committee cannot make this determination without assessing the facts of the case. Yet rather than engaging directly with the factual disputes at hand, the Committee’s opinion instead makes the shocking pronouncement that “it is not its task to weigh the evidence or to reassess the statements made regarding the events in question or the credibility of the relevant national authorities” (see para. 10.2 above). I strongly dissent from this statement, as it conflicts both with the content of the Committee’s general comment No. 1, which has guided many Committee decisions, and with the Committee’s jurisprudence in a host of decisions on individual communications. 4. Paragraph 9 of the Committee’s general comment No. 1 addresses this issue directly. It states: “Bearing in mind that the Committee against torture is not an appellate, a quasijudicial or an administrative body, but rather a monitoring body created by the States parties themselves with declaratory powers only, it follows that: (a) Considerable weight will be given, in exercising the Committee’s jurisdiction … to findings of fact that are made by the organs of the State party concerned; but (b) The Committee is not bound by such findings and instead has the power, provided by article 22, paragraph 4 of the Convention, of free assessment of the facts based upon the full set of circumstances in every case.”a 5. In a number of cases, both where the judicial organs have made relevant findings of fact bearing on the allegations at issue and, as in this case, where the judicial organs of the a 12 Committee against Torture, general comment No. 1, implementation of article 3 in the context of article 22. Official Documents of the General Assembly, fifty-third session. Supplement No. 44 (A/53/44 and Corr. 1), annex IX. GE.12-40869