CAT/C/53/D/482/2011
family are embroiled in a vendetta with another family from a village neighbouring that of
the complainants. Since the war, 15 members of the 2 families have been killed. E.S. does
not wish to live with the father of her child and fears that he might take her son away from
her, since the local tradition dictates that boys are to be raised in the father��s family. E.S.’s
son is also in danger of becoming involved in the feud between the families. E.S. also fears
for her own safety, as she saw her father’s murderer on several occasions when he came
and threatened them at the family home.
Issues and proceedings before the Committee
Consideration of admissibility
6.1
Before considering any claims contained in a complaint, the Committee against
Torture must decide whether or not it is admissible under article 22 of the Convention. The
Committee has ascertained, as it is required to do under article 22, paragraph 5 (a), of the
Convention, that the same matter has not been and is not being examined under another
procedure of international investigation or settlement.
6.2
The Committee recalls that, in accordance with article 22, paragraph 5 (b), of the
Convention, it shall not consider any complaint unless it has ascertained that the
complainant has exhausted all available domestic remedies. The Committee notes that the
complainants have exhausted all domestic remedies available to them. As the Committee
finds no further obstacles to admissibility, it declares the complaint admissible.
Violation of article 22 of the Convention
7.
As regards non-compliance with the Committee’s request of 11 November 2011 to
suspend removal, the Committee recalls that the State party, by ratifying the Convention
and voluntarily accepting the Committee’s competence under article 22, undertook to
cooperate with the Committee in good faith in applying and giving full effect to the
individual complaints procedure established thereunder. The Committee also notes that the
Convention (art. 18) vests it with competence to establish its own rules of procedure, which
then constitute an integral part of the Convention provided that they do not run counter to it.
The Committee further recalls that the State party’s obligations include observance of the
rules adopted by the Committee, which are an integral part of the Convention. This includes
rule 114 of the rules of procedure. That rule is specifically intended to give meaning and
scope to articles 3 and 22 of the Convention, which otherwise would offer asylum seekers
claiming a serious risk of torture nothing more than a purely relative, not to say theoretical,
form of protection.13 Consequently, the Committee considers that, by sending one of the
complainants back to Kosovo despite having agreed to the Committee’s request for interim
measures, thereby presenting the Committee with a fait accompli, the State party has
committed a breach of its obligations under article 22 of the Convention.
Examination of the merits
8.1
In accordance with article 22, paragraph 4, of the Convention, the Committee has
considered the present complaint in the light of all information made available to it by the
parties concerned.
8.2
The issue before the Committee is whether the removal of the complainants to
Kosovo would constitute a failure to fulfil the State party’s obligation under article 3 of the
Convention not to expel or to return a person to another State where there are substantial
grounds for believing that he or she would be in danger of being subjected to torture. The
13
GE.15-00578
See communication No. 249/2004, Dar v. Norway, decision of 11 May 2007, para. 16.3; and
communication No. 300/2006, Tebourski v. France, decision of 1 May 2007, para. 8.6.
9