CAT/C/34/D/233/2003**
Page 38
Separate Opinion of Committee Member Mr. Alexander Yakovlev
(dissenting, in part)
I respectfully disagree with the majority’s finding on the article 3 issues. The Committee
establishes, correctly, the time of removal as the key point in time for its assessment of the
appropriateness, from the perspective of article, of the complaint’s removal. As is apparent
from the Committee’s decision, the bulk of the information before it relates to events
transpiring after expulsion, which can have little relevance to the situation at the time of
expulsion.
It is clear that the State party was aware of its obligations under article 3 of the Convention,
including the prohibition on refoulement. Precisely as a result, it sought assurances from the
Egyptian government, at a senior level, as to the complainant’s proper treatment. No less an
authority than the former Special Rapporteur of the Commission on Human Rights on
Torture, Mr. van Boven, accepted in his 2002 report to the Commission on Human Rights the
use of such assurances in certain circumstances, urging States to procure “an unequivocal
guarantee … that the persons concerned will not be subjected to torture or any other forms of
ill-treatment upon return” . This, which is precisely what the State party did, is now faulted by
the Committee. At the time, the State party was entitled to accept the assurances provided,
and indeed since has invested considerable effort in following- up the situation in Egypt.
Whatever the situation may be if the situation were to repeat itself today is a question that
need not presently be answered. It is abundantly clear however at the time that the State party
expelled the complainant, it acted in good faith and consistent with the requirements of article
3 of the Convention. I would thus come to the conclusion, in the instant case, that the
complainant’s expulsion did not constitute a violation of article 3 of the Convention.
[signed]
Alexander Yakovlev
[Adopted in English, French, Russian and Spanish, the English text being the original
version. Subsequently to be issued also in Arabic and Chinese as part of the Committee’s
annual report to the General Assembly.]
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