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article 3 of the Convention, on transferring any person to another jurisdiction where
there are reasonable grounds to believe that the person is at risk of torture.32
B.
Jurisprudence of regional human rights mechanisms
38. The Special Rapporteur would like to recall the decision of the European
Court of Human Rights in the Soering case in which it was established that the
general principle of non-refoulement falls under the general and absolute prohibition
against torture as outlined in article 3 of the European Convention on Human
Rights.33
39. In the case of Chahal v. the United Kingdom,34 not only did the Court reaffirm
the obligation of non-refoulement in European human rights law, but it also
established the standard that diplomatic assurances are an inadequate guarantee for
returns to countries where torture is “endemic”, or a “recalcitrant and enduring
problem”. The Court ruled that the return to India of a Sikh activist suspected of
involvement in terrorism would violate the United Kingdom’s obligations under
article 3 of the European Convention, despite the diplomatic assurances given by the
Government of India.
C.
Diplomatic assurances
40. In November 2004, the Committee against Torture expressed its concern at the
United Kingdom’s reported use of diplomatic assurances in the refoulement context
in circumstances where its minimum standards for such assurances, including
effective post-return monitoring arrangements and appropriate due process
guarantees, were not wholly clear.35 The Committee requested that within one year,
the United Kingdom provide it with details on how many cases of extradition or
removal subject to receipt of diplomatic assurances or guarantees had occurred since
11 September 2001, what the State party’s minimum contents are for such
assurances or guarantees and what measures of subsequent monitoring it has
undertaken in such cases.36
41. In Tapia Paez v. Sweden, the Committee against Torture stated that the test of
article 3 is absolute: “Whenever substantial grounds exist for believing that an
individual would be in danger of being subjected to torture upon expulsion to
another State, the State party is under obligation not to return the person concerned
to that State. The nature of the activities in which the person concerned [is] engaged
cannot be a material consideration when making a determination under article 3 of
the Convention.”37
42. In May 2005, the Committee against Torture considered the case of Agiza v.
Sweden38 involving the expulsion in December 2001 of Ahmed Agiza and
Mohammed al-Zari, on the grounds of suspected terrorist activities, from Sweden to
Egypt aboard an aircraft operated by the United States.
43. The Swedish authorities relied on diplomatic assurances proffered by the
Government of Egypt that neither of the suspects would be subjected to the death
penalty, torture or ill-treatment and that they would be afforded the right to a fair
trial. The two Governments also implemented a post-return monitoring mechanism
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