CAT/C/34/D/233/2003**
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complainant is at risk of external pressure in the event of an insistence on an independent
investigation. In fact, the complainant, through his relatives, has repeatedly made known his
desire for the fullest possible defence of his interests.
11.12 Counsel goes on to refer to relevant case law in national jurisdictions. In the case of
Mr. Bilasi- Ashri, the Egyptian government refused to accept a detailed set of assurances,
including post-return monitoring, requested by the Austrian Minister of Justice following a
decision to that effect by an Austrian court of appeal. In the case of Ahmed Zakaev, a British
extradition court found that a real risk of torture was not discounted by assurances given in
open court by a Russian deputy minister overseeing prisons. Counsel argues that a similarly
rigorous approach, with effective protection provided by the legal system, ought to have been
followed in the complainant’s case.
11.13 Counsel expands on the earlier reference to involvement of the United States of
America in the complainant’s case in paragraph 10.2, supra, referring to a book entitled
“Chain of Command” by Seymour Hersh. This contended that “the Bromma action”
(referring to the airport from which the complainant was removed) was carried out by
members of the Special Access Program of the United States Department of Defense who
were engaged in returning terrorist suspects to their countries of origin utilising
“unconventional methods”. It is said that the complainant’s removal was one of the first
operations carried out under this program and described by an operative involved as “one of
the less successful ones”. In counsel’s view, this third State involvement at the removal stage
in an anti-terrorism context should have confirmed what the State party already knew from its
knowledge of the common use of torture in Egypt and the complainant’s particular
vulnerability, that is, that a real risk of torture existed at the time of his removal, in breach of
article 3.
11.14 By further letter of 16 November 2004, counsel provided a copy of a Human Rights
Watch report to the Committee entitled “Recent Concerns regarding the Growing Use of
Diplomatic Assurances as an Alleged Safeguard against Torture”. The report surveys recent
examples of State practice in the area of diplomatic assurances by Germany, the United States
of America, the Netherlands, the United Kingdom and Canada. The report argues that such
assurances are increasingly viewed as a way of escaping the absolute character of nonrefoulement obligations, and are expanding from the anti-terrorism context into the area of
refugee claims. It contends that assurances tend to be sought only from countries where
torture is a serious and systematic problem, which thus acknowledges the real risk of torture
presented in such cases.
11.15 In the light of national experience, the report concludes that assurances are not an
adequate safeguard for a variety of reasons. Human rights protection is not amenable to
diplomacy, with its tendency to untransparent process and to place the State to State
relationship as the primary consideration. Such assurances amount to trusting a systematic
abuser who otherwise cannot be trusted to abide by its international obligations. It also
amounts to giving a systematic abuser a “pass” with respect to an individual case when torture
is otherwise widespread. Finally, the effectiveness of post-return monitoring is limited by the
undetectability of much professionally- inflicted torture, the absence of medical expertise from
typical monitoring arrangements, the unwillingness of torture victims to speak out for fear of
retribution, and the unwillingness of either the sending State or the receiving State to accept
any responsibility for exposing an individual to torture.
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