62. Whereas sending States parties must indeed provide assistance to persons involuntarily transferred who
subsequently face a risk of or actual torture or other ill-treatment, we would caution that such “followup visits” would necessarily entail visiting one or a few, named detainees to ensure they are not tortured
or otherwise ill-treated while ignoring, or being barred from monitoring, others who may be tortured
within the same facility. For human rights “experts and institutions,” be they international or national,
to carry out visits of such a nature would undermine their human rights mission and the universality of
the prohibition on torture and other ill-treatment, as well as compromise the principle of nondiscrimination – which is precisely why “diplomatic assurances” against torture must never be resorted
to. As early as the turn of the century, the International Committee of the Red Cross (ICRC) refused a
request by the UK government to monitor the treatment of four individual which it tried to forcibly
transfer to Egypt under “diplomatic assurances.” The ICRC “would not visit particular prisoners without
a general agreement allowing it access to all prisoners”.102 We would therefore strongly recommend that
the second sentence of paragraph 22 be deleted. This exclusion need not rule out measures such as visits
being undertaken by diplomatic missions of the sending State.
63. Should the Committee choose to include references to monitoring bodies in paragraph 22, it should be
explicit that the holistic system of preventive monitoring described by the OPCAT can never fulfil the
requirements of post-return protection-focussed individual monitoring.
In light of the above comments, we recommend the following comprehensive revision of paragraph 22.
Recommended textual changes and additions:
Para 22: States parties should envisage mechanisms of financial and legal assistance to persons deported
ensure that victims of Article 3 violations can access redress mechanisms which are capable of affording
adequate, effective and comprehensive reparation to persons who are victims of a violation of the State’s
Article 3 obligations.
The sending State is obliged to ensure that its redress mechanisms are available and accessible to victims
of Article 3 violations, regardless of their location. States parties should adapt their procedures as
required in order to make them fully accessible to victims who may be outside their jurisdiction.
Any breach of Article 3 gives rise to an obligation on the responsible State party to afford an effective
remedy and reparation to the victim(s) of that breach. The appropriate forms of reparation will depend
on the nature of the breach and the consequences for the victim(s) and must be adequate, effective and
comprehensive. As recognised in General Comment 3, redress encompasses the concepts of “effective
remedy” and “reparation”, which entail: restitution, compensation, rehabilitation, satisfaction and
guarantees of non-repetition.103
Where a State party has failed to comply with its obligations under Article 3 it should make every effort
to ensure that affected individuals may be returned to its jurisdiction. 104 When necessary t The sending
102
Hani El Sayed Sabei Youssef v. The Home Office, [2004] EWHC 1884 (QB), July 30, 2004, para. 26.
CAT, General Comment No. 3, UN Doc. CAT /C/GC/3, 19 November 2012, para. 2.
104
CAT, Abdussamatov et al. v. Kazakhstan, UN Doc. CAT/C/48/D/444/2010, 7 June 2012, para. 15. CAT, Concluding
Observations: Kazakhstan, UN Doc. CAT/C/KAZ/CO/2, 12 Dec. 2014, para. 16(g); HRC, AH v. Denmark, UN Doc.
CCPR/C/114/D/2370/2014, 18 March 2014, para. 10 (and follow up at HRC, 118th Session); CAT, X v. Kazakhstan, UN
Doc. CAT/C/55/D/554/2013, 3 Aug. 2015, para. 14.
103
28
AI Index: IOR 40/6040/2017
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