UN TREATY BODIES
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every case.”222 The risk to which the author may be exposed will be assessed at
the time of consideration of the complaint, so the CAT may consider elements
which have come to light since the initial submission was made.223 In assessing
the risk, the Committee may consider whether the State to which the individual is to be returned is itself a party to the UNCAT, or whether it allows for
individual complaints to be made to the Committee.224 Where expulsion has
already occurred, the Committee will take its decision in light of the information which the authorities of the State party had or should have had in their
possession at the time of the expulsion.225 If a State party expels a person in the
period between submission of the complaint and its consideration by the CAT,
this may in itself amount to a violation of the Convention.226
The CAT has developed substantial jurisprudence on the requirement that the
risk of torture be “foreseeable, real and personal.”227 Thus, “the existence of a
consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute a sufficient ground for determining that a person
would be in danger of being subjected to torture upon his return to that country;
additional grounds must exist that indicate that the individual concerned would
be personally at risk.”228 Furthermore, it is not sufficient for an author to show
that he or she risks being tortured in one particular region of a State if expulsion to another region is possible and would not entail a risk of torture.229 The
CAT, General Comment No. 1, 1997, §9.
See, for example, Attia v Sweden (2003), op. cit., §12.1, referring to H.M.H.I. v Australia (2002),
op. cit.
224
See, for example, Khan v Canada, CAT Communication No. 15/1994, 15 November 1994,
§12.5; Korban v Sweden, CAT Communication No. 88/1997, 16 November 1998; Attia v Sweden (2003), §12.3. The CAT revisited this aspect of its decision from Attia v Sweden (2003) in
the subsequent case Agiza v Sweden (2005), which concerned Ms Attia’s husband. It indicated
that, given information which had come to light in the intervening period regarding Egypt’s
non-respect of diplomatic assurances, the original case might have been decided differently.
See Agiza v Sweden (2005), op. cit., §13.5.
225
See, for example, Agiza v Sweden (2005), op. cit., §13.2; Tebourski v France, CAT Communication No. 300/2006, 1 May 2007, §8.1.
226
See, for example, Brada v France, CAT Communication No. 195/2002, 17 May 2005. This case
also makes clear that applicants should not be deported prior to the exhaustion of domestic
remedies, §13.5.
227
A.R. v the Netherlands, CAT Communication No. 203/2002, 21 November 2003, §7.3. See also
S.P.A. v Canada, CAT Communication No. 282/2005, 7 November 2006, §7.2.
228
Khan v Canada (1994), op. cit., §12.2. See also, for example, Mutombo v Switzerland, CAT
Communication No. 13/1993, 27 April 1994, §9.3; E.A. v Switzerland, CAT Communication
No. 28/1995, 10 November 1997, §11.2; N. P. v Australia, CAT Communication No. 106/1998, 6
May 1999, §6.4; S.S.H. v Switzerland, CAT Communication No. 254/2004, 15 November 2005,
§6.3; El Rgeig v Switzerland, CAT Communication No. 280/2005, 15 November 2006, §7.4.
229
B.S.S. v Canada, CAT Communication No. 183/2001, 12 May 2004, §11.5. See also H.M.H.I. v
Australia (2002), op. cit., §6.6.
222
223
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