from the Egyptian authorities.32 Gil-Robles stated that it is particularly important in cases where risk of torture is elevated that “proceedings leading to expulsion are surrounded by appropriate legal safeguards, at the very least a hearing in a judicial instance and right to appeal. Contrary proceedings clearly risk violating articles 3, 6, and 13 of the European Convention [on Human Rights].”33 Moreover, Gil-Robles stated that the men’s cases “clearly illustrate the risks of relying on diplomatic assurances:”34 The weakness inherent in the practice of diplomatic assurances lies in the fact that where there is a need for such assurances, there is clearly an acknowledged risk of torture or ill-treatment. Due to the absolute nature of the prohibition of torture or inhuman or degrading treatment, formal assurances cannot suffice where a risk nonetheless remains…When assessing the reliability of diplomatic assurances, an essential criteria must be that the receiving state does not practice or condone torture or ill-treatment, and that it exercises effective control over the acts of nonstate agents. In all other circumstances it is highly questionable whether assurances can be regarded as providing indisputable safeguards against torture and ill-treatment.35 U.N. Special Rapporteur on Torture In his September 2004 report to the United Nations General Assembly,36 Theo van Boven, the outgoing special rapporteur on torture, expressed concern that reliance on diplomatic assurances is a “practice that is increasingly undermining the principle of non-refoulement.”37 He questioned “whether the practice of resorting to assurances is not becoming a politically inspired substitute for the principle of non-refoulement, which…is absolute and nonderogable.”38 In his conclusions, the Special Rapporteur stated that, as a baseline, in circumstances where a person would be returned to a place where torture is systematic, “the principle of non-refoulement must be strictly observed and diplomatic assurances should not be resorted to.”39 He also noted that if a person is 32 Report by Mr. Alvaro Gil-Robles, Commissioner from Human Rights, on His Visit to Sweden, April 21-23, 2004. Council of Europe, CommDH(2004)13, July 8, 2004, at http://www.coe.int/T/E/Commissioner_H.R/Communication_Unit/Documents/pdf.CommDH(2004)13_E.pdf (retrieved February 22, 2005). 33 Ibid., p. 9, para. 19. Article 3 provides for the absolute ban on torture and cruel, inhuman or degrading treatment; article 6 for fair trial guarantees; and article 13 for appropriate remedies for violations of the ECHR. 34 Ibid. 35 Ibid. 36 Report of the Special Rapporteur on Torture Theo van Boven to the General Assembly, August 23, 2004, paras. 30-42. 37 Ibid., para. 30. 38 Ibid., para. 31. 39 Ibid., para. 37. HUMAN RIGHTS WATCH VOL. 17 NO. 4(D) 16