CAT/C/50/D/430/2010 Complainant’s comments on the State party’s observations on admissibility and on the merits 8.1 In her comments of 26 June 2011, the complainant argues that, at the time of the submission of her initial complaint to the Committee on 25 August 2010, the subject matter dealt with in her application had not been examined by the European Court of Human Rights and that neither Onsi Abichou nor his lawyer knew that an application was pending before that body. The complainant recalls the distinction that must be made, in her opinion, between a communication and a request for interim protection measures. Article 22, paragraph 5 (a), of the Convention precludes the Committee from considering any communication that has been or is being examined under another international procedure, but it does not apply to requests for interim protection measures for obvious reasons related to the need to give priority to protecting a person’s physical and mental integrity, over and above any other procedural consideration. 8.2 At the request of ACAT-France (counsel for the complainant), on 3 and 19 August 2010, the law firm of William Bourdon submitted requests for interim measures to the European Court of Human Rights pursuant to rule 39 of the Rules of Court, in which he requested that the Court ask Germany to stay Onsi Abichou’s extradition to Tunisia.18 On 12 and 23 August 2010, the Court rejected these requests.19 The Court’s decisions concerned only the requests made under rule 39 (interim measures) of the Rules of Court. Hence, the Court never ruled on the claim currently under consideration by the Committee. Therefore, it cannot be argued that the subject matter dealt with in the claim contained in the communication submitted to the Committee has already been examined under another international procedure. 8.3 When the second request for interim measures was rejected, an official of the Court called Mr. Bourdon on the telephone to ask if he wished the Court to consider the application on the merits, to which Mr. Bourdon replied in the negative, in keeping with the wishes of ACAT-France and Onsi Abichou’s family. Mr. Bourdon did not make any further submissions to the Court concerning the matter, and since then has not dealt with Onsi Abichou’s case, which is being handled exclusively by ACAT-France. It was only after Mr. Bourdon’s law firm received the letter addressed to the German Government by the European Court of Human Rights, on 7 February 2011, that Mr. Bourdon and ACATFrance realized that, contrary to their instructions, the case remained pending before the Court. 8.4 ACAT-France thereupon asked Mr. Bourdon to rectify this mistake as a matter of urgency, which he did by drafting a letter to the Court on 8 March 2011 in which he reminded it that, after its rejection of the second request for interim measures, he had informed the Court of his wish for it not to examine the application on the merits. In a letter dated 25 March 2011, the registrar of the Court replied that Mr. Bourdon should have withdrawn the application in writing and that, because of his failure to do so, the application had been maintained. On 7 April 2011, at the express request of Mr. Bourdon, the Court finally struck Onsi Abichou’s application off its list of cases. Since ACAT-France did not take part in the exchanges between Mr. Bourdon’s firm and the registry of the European Court of Human Rights, it is not in a position to determine who is responsible for the misunderstanding, and it requests that the Committee ensure that Onsi Abichou, who bears no responsibility whatsoever for this misunderstanding, does not suffer as a result of it. 18 19 GE.13-45615 Since the person in charge of Onsi Abichou’s case at ACAT was not a lawyer, the services of a lawyer had been sought. The complainant attaches the Court’s decision of 12 August 2010. 11