CAT/C/41/D/323/2007
page 8
general comment No. 2, in which it states that the jurisdiction of a State party refers to any
territory in which it exercises, directly or indirectly, in whole or in part, de jure or de facto
effective control, in accordance with international law.3 In particular, it considers that such
jurisdiction must also include situations where a State party exercises, directly or indirectly, de
facto or de jure control over persons in detention. This interpretation of the concept of
jurisdiction is applicable in respect not only of article 2, but of all provisions of the Convention,
including article 22. In the present case, the Committee observes that the State party maintained
control over the persons on board the Marine I from the time the vessel was rescued and
throughout the identification and repatriation process that took place at Nouadhibou. In
particular, the State party exercised, by virtue of a diplomatic agreement concluded with
Mauritania, constant de facto control over the alleged victims during their detention in
Nouadhibou. Consequently, the Committee considers that the alleged victims are subject to
Spanish jurisdiction insofar as the complaint that forms the subject of the present communication
is concerned.4
8.3 The Committee takes note of the State party’s contention that the complainant is not
competent to represent the alleged victims because they did not authorize him to do so. The
complainant has affirmed that the alleged victims could not themselves submit a complaint to the
Committee on account of their conditions of detention in Mauritania. The Committee would
point out that, in accordance with subparagraph (a) of rule 107 of its rules of procedure, the
individual designated to submit a complaint under article 22 of the Convention is the victim
himself/herself, his/her relatives or designated representatives or others on his or her behalf when
it appears that the victim is unable personally to submit the complaint, and when appropriate
authorization is submitted to the Committee. In the present case, the alleged victims should have
expressly authorized the complainant to approach the Committee on their behalf, unless it was
impossible for them to do so, given their situation.5 The Committee observes that during their
detention in Nouadhibou the alleged victims were interviewed by representatives of UNHCR,
IOM and the non-governmental organization Médecins du Monde. It likewise observes that, with
the authorization of the alleged victims, the Spanish Commission for Refugee Assistance applied
for a remedy at the domestic level relating to the same events. Thus, the information before the
Committee does not permit the Committee to conclude that it would not have been possible at
any time to reach the alleged victims in order to obtain their consent to be represented before the
Committee, particularly when application for a domestic remedy had already been made in
connection with their situation. Nor can it be concluded that alleging a lack of financial resources
3
General comment No. 2 (2007), CAT/C/GC/2/CRP.1/Rev.4, para. 16.
4
See the Committee’s decision in Guengueng et al. v. Senegal, communication No. 181/2001,
adopted on 17 May 2006, para. 9.3.
5
See the decisions of the Human Rights Committee on admissibility in E.H.P. v. Canada
(communication No. 67/1980), adopted on 27 October 1982, para. 8 (a); and X v. Serbia
(communication No. 1355/2004), adopted on 26 March 2007, para. 6.3; and its Views in
Sultanova v. Uzbekistan (communication No. 915/2000), adopted on 30 March 2006, para. 6.2;
Abbassi v. Algeria (communication No. 1172/2003), adopted on 28 March 2007, para. 7.3; and
Benhadj v. Algeria (communication No. 1173/2003), adopted on 20 July 2007, para. 7.3.