CAT/C/67/D/813/2017 Complainant’s comments on the State party’s observations 7.1 On 20 February 2019, the complainant reiterated that the decision of 2 June 2016 of the European Court of Human Rights did not preclude the Committee under article 22 (5) (a) of the Convention from examining the present communication. 7.2 The complainant recalls that the European Court of Human Rights dismissed his application without an indication of specific grounds, referring generally to articles 34 and 35 of the Convention. The State party hence erroneously assumes that the Court deemed the case inadmissible for reasons related to the substance of the case rather than on purely procedural grounds. The State party wrongly assumed that the Court had examined the merits of the present case, inferring this from the fact that none of the procedural reasons for inadmissibility under the provisions of article 35 (1) and (2) of the European Convention on Human Rights would apply. 7.3 Moreover, the State party erroneously argued that the European Court of Human Rights eventually decided that the complainant’s case was inadmissible on the basis of article 35 (3) (a), as the complainant’s case did not fall under the jurisdiction of the Convention. Its arguments for denying jurisdiction over the complainant for the duration of the time that he spent in custody in Guantanamo Bay are irrelevant for the purposes of admissibility. The State party’s arguments appear to be a contradictory attempt to avoid its absolute legal obligation under the Convention to ensure that there is no gap in protection of human rights due to inappropriate and artificial limits on territorial jurisdiction.20 7.4 The State party is not introducing any new element to argue that the Committee is precluded by article 22 (5) (a) of the Convention from examining the communication. Moreover, it does not contest the material facts initially submitted. The complainant restates that a general inadmissibility decision by another human rights body does not mean that the matter has in any way been considered on the merits, that is, examined within the meaning of article 22 (5) (a) of the Convention, as is confirmed by the Committee’s jurisprudence. In H.A. v. Sweden,21 the Committee concluded that “the succinct reasoning provided by the European Court of Human Rights… does not allow the Committee to verify the extent to which the Court examined the complainant’s application, including whether it conducted a thorough analysis of the elements related to the merits of the case”. Such a position is consistent with the well-established jurisprudence of other United Nations treaty bodies, including the Human Rights Committee. 22 Moreover, the present communication does not concern the “same matter” for the purposes of admissibility before this Committee,23 since the range of violations alleged by the complainant is broader than the claims presented to the European Court of Human Rights. 24 Since that Court did not reach any substantive determination about the complainant’s situation or about the violations by Belgium of its international obligations, the present communication should be considered admissible. 7.5 On the merits, the complainant submits that his claims fall under the State party’s jurisdiction for the purpose of article 2 of the Convention – opposing the State party’s argument that extraterritorial jurisdiction would remain an exception in international human rights law.25 The Committee has considered that the scope of territory under article 2 must also include situations where a State party exercises, directly or indirectly, de facto or de jure, control over persons in detention, which reinforces article 5 (1) (b) requiring that a State party 20 21 22 23 24 25 10 A/70/303, para. 13. See para. 6.5; see also S v. Sweden, para. 7.5. See, for example, Yaker v. France (CCPR/C/123/D/2747/2016), para. 6.2; and Hebbadj v. France (CCPR/C/123/D/2807/2016), para. 6.4. A.R.A. v. Sweden, para. 6.2; and A.A. v. Azerbaijan (CAT/C/35/D/247/2004), para. 6.8. For example, the present communication claims a violation of article 10 of the Convention, which is not included in the application submitted to the European Court of Human Rights on 4 April 2016. In a similar case – Hicks v. Australia (CCPR/C/115/D/2005/2010), para. 4.5 – the Human Rights Committee held that “the influence held by the State party cannot be seen as amounting to the exercise of power or effective control over the author, who was detained in a territory controlled by the United States that was not under the sovereignty or jurisdiction of the State party.”