CAT/C/47/D/368/2008 argument, the complainant refers to the report of the Ombudsman of 3 April 2009, in which he objects to the procedure used by the Provincial Maritime Service of Ceuta for returning people to Morocco who have been intercepted in Moroccan waters near the breakwaters that mark the border between Spanish and Moroccan territory. According to that report, the decisive factor is not whether the asylum-seekers are on Spanish territory, but rather whether or not they are under the effective control of Spanish authorities; if they are, the principle of non-refoulement cannot be circumvented by arguing that the rescue took place outside Spanish territorial waters.2 State party’s observations on the merits 6.1 On 15 June 2009, the State party submitted its observations on the merits of this complaint. 6.2 The State party reiterates that the events referred to by the complainant are under investigation by the Spanish judicial authorities and specifically by Examining Court No. 1 of Ceuta and that the ground for finding the complaint inadmissible set forth in article 22, paragraph 5 (b), of the Convention therefore applies. It also states that family members could have been joined as parties to the judicial proceedings but did not do so. 6.3 The State party has submitted a copy of the record of Preliminary Inquiry No. 1135/2007, which states, in part: • On 28 September 2007, Examining Court No. 1 of Ceuta opened an inquiry to ascertain the facts. On the basis of the evidence, on that same date the judge decided to dismiss the proceedings and close the case because the events in question did not occur on Spanish territory and the acts in question are not defined as offences in the Criminal Code. The Court also ordered that samples be taken from the dead body for purposes of genetic identification and decided to refer the proceedings to the Public Prosecution Service. • On 11 January 2008, the Office of the Attorney General requested that Examining Court No. 1 of Ceuta reopen the case in the light of new information that indicated that the events in question had taken place on board a vessel flying the Spanish flag, which would render the Spanish courts competent to hear the case. The Attorney General found that the preliminary inquiry had uncovered signs that a criminal offence had been committed, since Mr. Sonko’s death occurred while he was in the 2 In the above-mentioned report, the Ombudsman states that: “In view of the foregoing, and while recognizing the necessary and effective work performed by the Civil Guard in Ceuta in order to, as noted in its report, ‘save the lives of a large number of illegal immigrants who attempt to enter Spain illegally by sea, either by swimming or under precarious conditions’, the procedure being used lacks any sort of support whatsoever. It also makes it impossible to detect who among the migrants of different types attempting to enter our territory illegally may be in need of international protection, in breach of article 33 of the 1951 Geneva Convention relating to the Status of Refugees, under which Spain is obligated to apply the principle of non-refoulement beyond its own borders in the event that a ship flying the Spanish flag rescues migrants outside our territorial waters and there are asylumseekers among them.” (...) “[U]nder the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in no event should such persons be set ashore in a territory where there exists a wellfounded fear that these persons may be subjected to torture. Nor should the Spanish authorities share personal information about asylum-seekers with the authorities of the country from which they are fleeing or with others who may transmit that information to those authorities.” 6 GE.12-40869