respect a request for interim measures, the State party violates,118 breaches119 and/or seriously fails to
comply120 with its obligations under article 22 of the Convention. However, by making a much weaker
statement, namely that “[i]t would constitute a serious damage and obstacle to the effectiveness of the
Committee’s deliberations and would shed a serious doubt on the willingness of the State party to
implement Article 22 of the Convention in good faith”, the draft appears to depart from this case-law
and to unwittingly underplay the gravity of non-compliance with an interim measure request and its
serious implication. This shift is not consistent with the approach developed and consistently restated
by the Committee in its decisions. 121
86. States parties that have authorized the Committee to consider individual complaints are obliged to
refrain from interfering with the processing of such complaints. Non-compliance with interim
measures hampers the processing of petitions as it nullifies the subject matter of a complaint and makes
it impossible for an individual to obtain a remedy preventing the violation before the Committee. As
stated by the Committee, by making the declaration under article 22, “States parties implicitly
undertake to cooperate with the Committee in good faith by providing it with the means to examine
the complaints submitted to it”.122
87. To bring the current draft into line with the Committee’s established case law on the legal
consequences of non-compliance with interim measures, we recommend that the draft provide clearly
that interim measures are legally binding on States parties that have made a declaration under Article
22.
Recommended textual changes:
38. States parties that have made a declaration under Article 22 undertake to comply with interim
measures issued by the Committee. When the Committee, or members designated by it, request the State
party concerned, for its urgent consideration to take such interim measures that the Committee considers
necessary to avoid irreparable damage to the alleged victim or victims of violation of Article 3 of the
Convention, in accordance with Rule 114 of the Committee’s rules of procedure, the State party must should
comply with the Committee’s request in good faith.
39. Non-compliance by the State party with the Committee’s request would make evident that the State party
failed in fulfilling its obligations to cooperate with the Committee.30 It would constitute a serious damage and
obstacle to the effectiveness of the Committee’s deliberations and would shed a serious doubt on the
willingness of the State party to implement Article 22 of the Convention in good faith. The failure to respect
a request for interim measures constitutes a breach of the State party’s obligations under article 22 of
the Convention as it nullifies the effective exercise of the right to complain conferred by article 22, thus
118
CAT, Kalinichenko v. Morocco, UN Doc. CAT /C/ 47 /D/ 428 / 2010, 18 Jan. 2012; CAT, Boily v. Mexico, UN Doc.
CAT /C/47/D/327/2007, 13 Jan. 2012; CAT, R.S. et al. v. Switzerland, UN Doc. CAT/C/53/D/482/2011, 19 Jan. 2015.
119
CAT, Tursunov v. Kazakhstan, UN Doc. CAT/C/54/D/538/2013, 3 July 2015; CAT, Singh v. Canada, UN Doc.
CAT/C/46/D/319/2007, 8 July 2011.
120
CAT, P.S.B. and T.K. v. Canada, UN Doc. CAT/C/55/D/505/2012, 1 Oct. 2015; CAT, X. v. Kazakhstan, UN Doc.
CAT/C/55/D/554/2013, 9 Oct. 2015; CAT, X. v. Russian Federation, UN Doc. CAT/C/54/D/542/2013, 30 June 2015;
CAT, Abdussamatov et al. v. Kazakhstan, UN Doc. CAT/C/48/D/444/2010, 7 June 2012.
121
See e.g. CAT, P.S.B. and T.K. v. Canada, UN Doc. CAT/C/55/D/505/2012, 1 Oct. 2015, para. 9.
122
CAT, Tursunov v. Kazakhstan, UN Doc. CAT/C/54/D/538/2013, 3 July 2015, para 7.2.
36
AI Index: IOR 40/6040/2017
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