CAT/C/47/D/368/2008 State party’s observations on admissibility 4.1 In its note verbale of 11 February 2009, the State party asserts that the complaint is inadmissible because domestic remedies have not been exhausted. It states that the events referred to in the complaint are under investigation by the Spanish judicial authorities and specifically by Examining Court No. 1 of Ceuta. 4.2 It is not true that neither the family nor CEAR could have been joined as a party to the legal proceedings initiated by the Public Prosecution Service (Ministerio Fiscal). On 28 November 2008, Examining Court No. 1 of Ceuta sent a letter rogatory to the High Court of Almería in which it requested that the relatives of the deceased be located. On 5 January 2009, Mr. Jankoba Coly, a cousin of Mr. Sonko, was notified in Vicar (Almería) of the proceedings. No family member, however, registered as a party to the proceedings. 4.3 The State party affirms that the complainant’s version of the events differs in certain fundamental aspects from the facts ascertained by the State party. It attaches a copy of a report issued by the Lieutenant Colonel stationed at the Civil Guard Headquarters in Ceuta, in which he states that the dinghies were not punctured; that the aid and rescue operation was carried out in Moroccan waters; that the migrants did not speak a language that was intelligible to the officers in question; that the Civil Guard officer jumped into the water to retrieve Mr. Sonko and to try to revive him; and that no traumatic injuries were found on Mr. Sonko’s body. The Civil Guard officers acted in accordance with the procedures for dealing with immigration by sea that have been established by the Civil Guard of Ceuta, the applicable special laws, and the conventions and treaties signed by the State party. According to the report, the procedures used to assist migrants found in Moroccan waters and in the vicinity of the breakwaters that mark each country’s border have substantially reduced the number of deaths. Ships that rescue persons at sea who are in distress or in danger have the obligation to provide them with assistance, to take them to a “place of safety” and to treat them humanely. Author’s comments on the State party’s submission 5.1 In her communication of 6 April 2009, the complainant maintains that all domestic remedies have been exhausted. She states that General Court No. 1 of Ceuta declared the preliminary inquiry closed and issued an order dismissing the proceedings concerning the death by drowning of Mr. Sonko. The dismissal order was not challenged by either the attorney representing the Civil Guard officers concerned or by the Office of the Attorney General of Ceuta and thus became final. The complainant states that she was unable to register as a party to the proceedings because the State party made no attempt during the judicial proceedings to locate Mr. Sonko’s family. The complainant refers to domestic jurisprudence which indicates that, once an order for the dismissal of proceedings has become final, it has the force of res judicata. 5.2 According to the complainant, the State party’s allegations do not belie the facts as initially described by the complainant and demonstrate the occurrence of torture or inhuman or degrading treatment. She reiterates that Mr. Sonko and his companions were taken on board a Spanish patrol boat and were therefore under Spain’s jurisdiction. Mr. Sonko was in good health when he was on board. When he reached the beach, however, he was in a poor condition; medical assistance was required and he died. The cause-effect relationship is unquestionable. 5.3 She asserts that the principle of non-refoulement obligates States to authorize the temporary admission or entry of asylum-seekers and to provide them with access to a procedure for arriving at a substantive determination as to whether or not, if they were to be returned, they would be in grave danger of losing their lives, being deprived of their freedom or being subjected to torture or inhuman or degrading treatment. In support of her GE.12-40869 5