“alternatively” and “when necessary”, which are inconsistent with the binding nature of the obligation
to afford reparation when an international legal obligation is breached. When Article 3 is breached,
there is an obligation to afford reparation, in cases where refoulement has resulted in torture or other
ill-treatment, as well as instances where ill-treatment has not actually materialized.72 This Committee
has observed that the right to an effective remedy underpins the entire Convention “for otherwise the
protections afforded by the Convention would be rendered largely illusory.”73 It has thus held that “in
order to reinforce the protection of the norm in question and understanding the Convention
consistently, the prohibition on refoulement contained in article 3 should be interpreted the same way
to encompass a remedy for its breach, even though it may not contain on its face such a right to remedy
for a breach thereof.”74
45. In its General Comment 3, this Committee articulated that the appropriate forms of reparation depend
on the nature of the breach and the consequences for the victim. Reparation must be adequate, effective
and comprehensive.75 A breach of Article 3 is sufficient to establish an obligation on the State party
to afford reparation. The ultimate consequences for the victim are thus relevant not on whether
reparation should follow, but on what forms of reparation would be most appropriate.
46. The ‘nature’ of the breach of Article 3 concerns the actions or inactions by the State party leading to
the refoulement. The consequences for the victim after the breach are immaterial to the determination
of the ‘nature’ of the breach, given that Article 3 is preventative; there is no need for actual torture to
have subsequently occurred for Article 3 to have been breached or for the risk to be re-confirmed postrefoulement. Thus, any breach of Article 3, regardless of the ultimate consequences for the victim,
constitutes a breach of the State party’s international obligations and results in an obligation to afford
reparation. The reference in paragraph 22 of the draft to “persons deported where they have
subsequently faced a substantial risk of being tortured or they have been tortured in the receiving
State…” therefore inappropriately narrows the categories of persons to whom reparation should apply,
namely:
-
“persons deported” is a subset of the multitude of individuals who may be victims of a violation of Article
3. Any victim of a violation of Article 3 is entitled to reparation;
“where they have subsequently faced a substantial risk of being tortured or they have been tortured in the
receiving State” is a similar limitation on the categories of individuals who may be a victim of a violation
of Article 3. The reference to “substantial risk” imposes a higher test than what is set out for a breach of
Article 3. Furthermore, the reference to torture in the receiving State is immaterial to the breach of Article
3 and concomitant obligation to afford reparation.
47. The consequences for the victim of an Article 3 breach can vary considerably and include: 1) individuals
who are at real risk of torture or other ill-treatment but have not yet suffered such abuse; 2) individuals
who have been subjected to torture or other ill-treatment and continue to face a real risk; 3) individuals
who have been subjected to torture or other ill-treatment but are no longer at risk (e.g. they may now be
72
See e.g., CAT, Tebourski v. France, UN Doc. CAT/C/38/D/300/2006, 11 May 2007, para. 10; CAT, Bachan Singh
Sogi v. Canada, UN Doc. CAT/C/39/D/297/2006, 29 November 2007, para. 12.
73
See e.g., CAT, Agiza v Sweden, UN Doc. CAT/C/34/D/233/2003, 24 May 2005, para. 13.6.
74
Ibid.
75
CAT, General Comment No. 3, UN Doc. CAT /C/GC/3, 19 November 2012, para. 6.
23
AI Index: IOR 40/6040/2017
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