that the “author’s continued presence in Canada
represents a danger to the public”. The Committee,
however is not convinced that an extension of his
stay in Canada for a few more months would have
been contrary to the public interest. In this regard,
the Committee refers to a case before the European
Court of Human Rights (Chapel v. United Kingdom)
in which the Court maintained that scrutiny of the
claim “must be carried out without regard to what
the person may have done to warrant expulsion or to
any perceived threat to the national security of the
expelling State”.
15.7 The Committee against Torture, acting under
article 22, paragraph 7, of the Convention against
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, concludes that the
author’s removal to India by the State party does not
constitute a breach of article 3 of the Convention.
Appendix
Individual opinion (dissenting) of Committee member
Guibril Camara
Under rule 108, paragraph 9, of its rules of procedure, the
Committee against Torture may take steps to avoid a
violation of the Convention and, therefore, an irreparable
damage. This provision is a logical attribute of the
competence bestowed on the Committee under article 22
of the Convention, concerning which the State party has
made a declaration. By invoking article 22, the author of a
communication submits an enforceable decision to the
Committee’s judgement, with due regard to the
requirement for the exhaustion of domestic remedies.
Therefore, if such decision is enforced despite the
Committee’s request for suspension, the State party
renders article 22 meaningless. This particular case is
basically a matter of lack of respect, if not for the letter,
then at any rate for the spirit of article 22.
15.4 On the merits of the communication, the
Committee notes that the author has been living in
India for more than two years. During this time,
although he claims to have been harassed and
threatened, along with his family, on several
occasions by the police, it seems that there has been
no change in the manner in which he has been
treated by the authorities. In these circumstances,
and given the substantial period of time that has
elapsed since the author’s removal, giving ample
time for the fears of the author to have been realized,
the Committee cannot but conclude that his
allegations were unfounded.
Moreover, it is clear from the terms of article 3 of the
Convention that the time to assess whether “there are
substantial grounds for believing that [the author] would
be in danger of being subjected to torture” is at the
moment of expulsion, return or extradition. The facts
clearly show that, at the time of his expulsion to India,
there were substantial grounds for believing that the
author would be subjected to torture. The State party
therefore violated article 3 of the Convention in acting to
expel the author.
15.5 The Committee is of the opinion that after a
period of nearly two and a half years, it is unlikely
that the author is still at risk of being subjected to
acts of torture.
15.6 The Committee considers that the State party,
in ratifying the Convention and voluntarily accepting
the Committee’s competence under article 22,
undertook to cooperate with it in good faith in
applying the procedure. Compliance with the
provisional measures called for by the Committee in
cases it considers reasonable is essential in order to
protect the person in question from irreparable harm,
which could, moreover, nullify the end result of the
proceedings before the Committee. The Committee
is deeply concerned by the fact that the State party
did not accede to its request for interim measures
under rule 108, paragraph 3, of its rules of procedure
and removed the author to India.
Lastly, the fact that in this case the author was not
subsequently subjected to torture has no bearing on
whether the State party violated the Convention in
expelling him. The question of whether the risk—in this
case, of acts of torture—actually materializes is of
relevance only to any reparation or damages sought by the
victim or by other persons entitled to claim.
The competence of the Committee against Torture should
also be exercised in the interests of prevention. In cases
relating to article 3, it would surely be unreasonable to
wait for a violation to occur before taking note of it.
61
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