22. In general, assessing the suitability of diplomatic assurances is relatively straightforward where they are intended to ensure that the individual concerned will not be subjected to capital punishment or certain violations of fair trial rights as a consequence of extradition. 35 In such cases, the wanted person is transferred to a formal process, and the requesting State’s compliance with the assurances can be monitored. While there is no effective remedy for the requested State or the surrendered person if the assurances are not observed, non-compliance can be readily identified and would need to be taken into account when evaluating the reliability of such assurances in any future cases. 23. The situation is different where the individual concerned risks being subjected to torture or other cruel, inhuman or degrading treatment in the receiving State upon removal. It has been noted that “unlike assurances on the use of the death penalty or trial by a military court, which are readily verifiable, assurances against torture and other abuse require constant vigilance by competent and independent personnel.” 36 The Supreme Court of Canada addressed the issue in its decision in Suresh v. Canada (Minister of Citizenship and Immigration), contrasting assurances in cases of a risk of torture with those given where the person extradited may face the death penalty, and signalling “…the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.” 37 24. In his report to the UN General Assembly of 1 September 2004, the Special Rapporteur of the UN Commission on Human Rights on torture and other cruel, inhuman or degrading treatment or punishment examined the question of diplomatic assurances in light of the non-refoulement obligations inherent in the absolute and nonderogable prohibition of torture and other forms of ill-treatment. Noting that in determining whether there are substantial grounds for believing that a person would be 35 For example, an undertaking not to seek or impose the death penalty, or to conduct a re-trial of a person in an ordinary rather than a special court, may adequately protect the individual concerned. 36 Report of the Independent Expert on the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, above footnote 5, at paragraph 56. 37 See Supreme Court of Canada, Suresh v. Canada (Minister of Citizenship and Immigration) 2002, above footnote 13, at paragraph 124. On concerns with regard to the effectiveness of monitoring as a safeguard against a risk of torture, see below at paragraph 26. See also Council of Europe, Report by Mr Alvaro Gil-Robles, Commissioner for Human Rights on his visit to Sweden, 21–23 April 2004, CommDH(2004)13, 8 July 2004: “[…] When assessing the reliability of diplomatic assurances, an essential criteri[on] must be that the receiving state does not practice or condone torture or ill-treatment, and that it exercises effective control over the acts of non-state agents. In all other circumstances, it is highly questionable whether assurances can be regarded as providing indisputable safeguards against torture and ill-treatment.” (at paragraph 19). 10