14
CPT: 15TH GENERAL REPORT
SOME COMMENTS ON ISSUES RELATED TO THE CPT’S ACTIVITIES
Diplomatic assurances
38.
Reference was made in the Preface to the
potential tension between a State’s obligation to protect
its citizens against terrorist acts and the need to uphold
fundamental values. This is well illustrated by the
current controversy over the use of “diplomatic
assurances” in the context of deportation procedures.
The prohibition of torture and inhuman or degrading
treatment encompasses the obligation not to send a
person to a country where there are substantial grounds
for believing that he or she would run a real risk of
being subjected to such methods. In order to avoid such
a risk in given cases, certain States have chosen the
route of seeking assurances from the country of
destination that the person concerned will not be illtreated. This practice is far from new, but has come
under the spotlight in recent years as States have
increasingly sought to remove from their territory
persons deemed to endanger national security. Fears
are growing that the use of diplomatic assurances is in
fact circumventing the prohibition of torture and illtreatment.
39.
The seeking of diplomatic assurances from
countries with a poor overall record in relation to
torture and ill-treatment is giving rise to particular
concern. It does not necessarily follow from such a
record that someone whose deportation is envisaged
personally runs a real risk of being ill-treated in the
country concerned; the specific circumstances of each
case have to be taken into account when making that
assessment. However, if in fact there would appear to
be a risk of ill-treatment, can diplomatic assurances
received from the authorities of a country where torture
and ill-treatment is widely practised ever offer
sufficient protection against that risk ? It has been
advanced with some cogency that even assuming those
authorities do exercise effective control over the
agencies that might take the person concerned into
their custody (which may not always be the case), there
can be no guarantee that assurances given will be
respected in practice. If these countries fail to respect
their obligations under international human rights
treaties ratified by them, so the argument runs, why
should one be confident that they will respect
assurances given on a bilateral basis in a particular
case?
40.
In response, it has been argued that
mechanisms can be devised for the post-return
monitoring of the treatment of a person deported, in the
event of his/her being detained. While the CPT retains
an open mind on this subject, it has yet to see
convincing proposals for an effective and workable
mechanism. To have any chance of being effective,
such a mechanism would certainly need to incorporate
some key guarantees, including the right of
independent and suitably qualified persons to visit the
individual concerned at any time, without prior notice,
and to interview him/her in private in a place of their
choosing. The mechanism would also have to offer
means of ensuring that immediate remedial action is
taken, in the event of it coming to light that assurances
given were not being respected.
41.
It should also be emphasised that prior to
return, any deportation procedure involving diplomatic
assurances must be open to challenge before an
independent authority, and any such challenge must
have a suspensive effect on the carrying out of the
deportation. This is the only way of ensuring rigorous
and timely scrutiny of the safety of the arrangements
envisaged in a given case.
42.
The CPT intends to follow closely
developments in States Parties to the European
Convention for the Prevention of Torture in relation to
the practice of diplomatic assurances. The Committee
would also be happy to contribute to any consideration
of this subject at the Council of Europe. The time
would indeed seem ripe for a collective discussion of
all the issues involved, in order to ensure that current
practice is in full conformity with the obligations
which flow from the prohibition of torture and
inhuman or degrading treatment.
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