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Human Rights in Counter-Terrorism Investigations
The prohibition of torture and ill-treatment is absolute. It is not permissible to
weigh the risk of torture or ill-treatment against the reasons put forward for
the expulsion, including national security.
Before deporting a person to another state, national authorities must adequately
assess the risk of torture or ill-treatment that the person could face there. Such an
assessment should take into consideration the existence in the state concerned of
a consistent pattern of gross, flagrant or mass violations of human rights.
The overall human rights situation in X’s country of origin continues to give rise
to serious concerns. Evidence from a number of objective sources demonstrates
that detainees are at real risk of being ill-treated there. Although X has been
acquitted in country B, his case has had broad media coverage and authorities
in his country of origin have been informed of his detention for removal purposes.
Given this information, there are serious reasons to believe that X would be
detained and questioned in his home country, and would be at risk of ill-treatment. Accordingly, his expulsion would violate the principle of non-refoulement
and thus, the absolute prohibition of torture and cruel, inhuman or degrading
treatment or punishment.
* This case study is taken from the facts in A. v. Netherlands, and the analysis of the question
on the findings of the ECtHR in that case.128
3.5.4 Co-operation with Foreign Law Enforcement Agencies will be Jeopardized
Law enforcement agencies complying with the rule of law and human rights
are reluctant to deal with agencies in countries where there is a history of
human rights abuses. This can lead to isolation and to the inability to achieve
progress in investigations on the part of such agencies. Given its international character, this is an especially important consideration in the fight
against terrorism, in particular in relation to the sharing of intelligence
material.128 Some states keep an official list of countries where torture is
an issue of concern. Countries may be placed on such lists for resorting to
128 United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Theo van Boven, Report to the Human Rights Council,
3 February 2011, op. cit., note 39.
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