Version provisoire non-éditée CAT/C/63/D/704/2015 Annex Individual opinion of Committee member Mr. Diego Rodriguez-Pinzon (dissenting) 1. In the present case, I respectfully disagree with the Committee’s views regarding the nature of the judicial remedies available to the author of the communication to protect her from being expelled or deported to the Democratic Republic of the Congo. The complainant is not required to exhaust domestic remedies that are not effective to protect her from deportation where she will face a risk of torture or cruel, inhuman or degrading treatment. Pursuant to Article 22 and Article 3 of the Convention, available remedies must allow for suspension of the deportation while a final decision is still pending in the domestic proceedings. Therefore, once such proceedings cease to allow for suspension of expulsion or deportation (as indicated in the interim ruling of 11 August 2015 of the Federal Administrative Court denying her authorization to remain in Switzerland until the completion of the procedure) , they no longer are effective for purposes of the protections required by Article 3 of the Convention, and the complainant is not required to exhaust them. Additionally, in its decision the Committee considers that a new application for asylum would provide for another opportunity to seek such protection, but I believe it is clear from the record that a new asylum application would only be available if there are new facts presented to the authorities, which is not the case in the current complaint. 2. The Committee itself has indicated in its case law that domestic legal remedies to challenge deportation orders must have suspensive effect if there is a risk that the deportee is at risk of torture or ill-treatment. Otherwise the legal remedies cannot be considered effective within the meaning of international human rights law. The Committee has considered that a complaint is admissible although the authors of the communications did not exhaust all domestic remedies, stating that such remedies were ineffective because they did not have suspensive effect to halt the deportation procedures.4 This is confirmed by the Committee’s General Comment No. 4 (2017) in paragraphs 34 and 35. 3. The standards of the European human rights system are especially relevant in the instant case, as required by Article 16.2 of CAT, due to the fact that Switzerland is also a State Party to the European Convention on Human Rights (ECHR). The European Court of Human Rights (ECtHR) has ruled in numerous cases that individuals must have access to a remedy with suspensive effect in cases of deportation with a risk of torture or ill-treatment. For example, In Čonka v. Belgium, the ECtHR held that “the notion of an effective remedy under Article 13 requires that the remedy may prevent the execution of measures that are contrary to the Convention and whose effects are potentially irreversible. Consequently, it is inconsistent with Article 13 for such measures to be executed before the national authorities have examined whether they are compatible with the Convention…” 5 Referring to Čonka, the ECtHR specified in Gebremedhin [Gaberamadhien] v. France that a foreigner facing deportation must have access to a remedy with suspensive effect “where there are substantial grounds for believing that he or she faces a risk of [torture or ill-treatment]”6 contrary to Article 3 ECHR. The ECtHR confirmed the ruling of Čonka in later cases, such as M.S.S. v. Belgium and Greece and Hirsi Jamaa and Others v. Italy.7 Furthermore, in Olaechea 4 5 6 7 See Josu Arkauz Arana v. France (CAT/C/23/D/63/1997), para. 6.1; Iratxe Sorzábal Díaz v. France, (CAT/C/34/D/194/2001), para. 6.1. See European Court of Human Rights, Čonka v. Belgium, (application No. 51564/99) judgement of 5 February 2002, para. 79. See European Court of Human Rights, Gebremedhin [Gaberamadhien] v. France, (application No. 25389/05), judgment of 26 April 2007, para. 66 (see also para. 58). See European Court of Human Rights, M.S.S. v. Belgium, (application no. 30696/09), judgment of 21 January 2011, para. 293; European Court of Human Rights, Hirsi Jamaa and Others v. Italy, (application No. 27765/09), judgment of 23 February 2012, para. 205. 7