Follow-up: Jurisprudence - CAT

CANADA

Follow‑up ‑ Jurisprudence

Action by Treaty Bodies

CAT, A/60/44 (2005)

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CHAPTER VI. CONSIDERATION OF COMPLAINTS UNDER ARTICLE 22 OF THE CONVENTION

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D. Follow-up activities

150. At its twenty-eighth session, in May 2002, the Committee against Torture revised its rules of procedure and established the function of a Rapporteur for follow-up of decisions on complaints submitted under article 22.

151. The Rapporteur on follow-up submitted an oral report to the Committee at its thirty‑third session. The report contained information received since the thirty-second session from either the complainants or the States parties on the issue of follow-up to a number of decisions in which the Committee had found violations of the Convention. During the consideration of this report, the Committee requested the Special Rapporteur to provide information on follow-up to all decisions in which the Committee had found violations of the Convention, including decisions in which the Committee found violations, prior to the commencement of the Rapporteurs mandate.

152. During the thirty-fourth session, the Special Rapporteur presented a report on follow-up to all the Committees decisions, including new information received from both the complainants and States parties since the thirty-third session. This report is provided below.

Report on follow-up to individual complaints to the¹ Committee against Torture

Complaints in which the Committee has found violations of the Convention up to thirty-fourth session

Case

Date of adoption

Nationality of complainant and country of removal if applicable

Article of Covenant violated

Interim measures granted and State partys response

Remedy

Follow-up

Further action

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No.15/1994Tahir Hussain Khan v. Canada

15 Nov. 1994

Pakistani to Pakistan

Requested and acceded to by the State party

The State party has an obligation to refrain from forcibly returning Tahir Hussain Khan to Pakistan

No information provided to Rapporteur, however, during the discussion of the State party report to the Committee against Torture in May 2005, the State party stated that the complainant had not been deported.

Request further information on the complainants status in Canada

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No. 133/1999

Falcon Rio v. Canada

30 Nov. 2004

Mexican to Mexico

Requested and acceded to by the State party

Relevant measures

On 9 March 2005, the State party provided information on follow-up. It stated that the complainant had submitted a request for a risk assessment prior to return to Mexico and that the State party would inform the Committee of the outcome. If the complainant could establish one of the motives for protection under the Immigration and Protection of Refugees Law he would be able to present a request for permanent residence in Canada. The Committees decision would be taken into account by the examining officer and the complainant would be heard orally if the Minister considered it necessary. Since the request for asylum had been considered prior to the entry into force of the Immigration and Protection of Refugees Law, that is prior to June 2002, the immigration agent would not be restricted to assessing facts after the denial of the initial request but would be able to examine all the facts and information, old and new, presented by the complainant. In this context, it contested the Committees finding in paragraph 7.5 of its decision in which it found that only new information could be considered during such a review.

Finally, the State party contested the Committees view that a humanitarian remedy did not constitute an effective remedy and referred to previous cases of the Committee in which the Committee itself found such remedies to be effective.⁵ It argued that the risk of torture could constitute a humanitarian motive and that the court could be requested to grant suspensive effect pending such a decision. According to the State party, at the time of the consideration of the report to the Committee, the authorities had not yet completed their reassessment of the risk of return.

Update to be requested

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¹ The present report reflects information up to the end of the thirty-fourth session.

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⁵ S.V. v. Canada, communication No. 49/1996; L.O. v . Canada, communication No. 95/1997; R. K. v. Canada, communication No. 42/1996.

CAT/C/SR.717 (2006)

COMMITTEE AGAINST TORTURE

Thirty-sixth session

SUMMARY RECORD OF THE 717th MEETING

Held at the Palais des Nations, Geneva,

on Tuesday, 16 May 2006, at 10 a.m.

...

CONSIDERATION OF COMMUNICATIONS UNDER ARTICLE 22 OF THE CONVENTION (agenda item 9) (continued)

50. The CHAIRPERSON invited the Special Rapporteur to introduce the report on follow-up activities (document without a symbol) relating to the Committees decisions on complaints submitted under article 22 of the Convention.

51. Mr. MARIÑO MENÉNDEZ, Special Rapporteur on Follow-up, summarized the comprehensive report on replies received with regard to all cases in which the Committee had found violations of the Convention and one case in which it had not found a violation but had made a recommendation.

52 It was proposed to send reminders requesting information or updates to the following States parties with regard to the specified communications: Austria (Halimi-Nedibi Quani, 8/1991); Canada (Tahir Hussain Khan, 15/1994; Falcon Ros, 133/1999); France (Brada, 195/2003); Netherlands (A, 91/1997); Serbia and Montenegro (Ristic, 113/1998; Hajrizi Dzemajl et al., 161/2000; Nikolic, 174/2000; Dimitrijevic, Dragan, 207/2002); Spain (Ecarnacin Blanco Abad, 59/1996; Urra Guridi, 212/2002); Sweden (Tharina, 226/2003; Agiza, 233/2003); Venezuela (Chipana, 110/1998).

53. In the case of Dadar v. Canada (258/2004), a note verbale had been sent to the State party on 13 March 2006 expressing concern that the complainant was to be deported to Iran despite the Committees decision concerning Canadas obligations under article 3 of the Convention. Following the complainants deportation on 26 March 2006, a second note verbale had been sent to the State party on 31 March 2006, expressing concern at the precedent set by Canada in failing to abide by the Committees decision on the merits of a case submitted and duly considered under article 22 of the Convention, asking to be informed by the State party of any measures taken to ensure the complainants safety on arrival in the Islamic Republic of Iran, including the establishment of any monitoring mechanism through the State partys consular offices, and requesting information in due course on the complainants well-being. Was the Committee agreed on the dispatch of a further note verbale to the State party, deploring its failure to comply with the terms of article 3, reminding it of its corresponding obligations, and requesting it to establish a monitoring mechanism whereby Canadian representatives would have direct contact with the complainant?

54. Mr. CAMARA expressed reservations about the dispatch of such a note, which might establish a precedent whereby States parties would consider their obligations under article 3 limited to establishing a monitoring mechanism following the deportation of a complainant. He thought that the Committee should inform the State party that it had violated article 3 and should include that information in its annual report.

55. Ms. GAER said that, at the time of the complainants deportation, the State party had maintained that the complainant was well and that there was therefore no need for a monitoring mechanism. It had never been suggested that such a mechanism would fulfil the State partys obligations, and it was for the Committee to determine what further follow-up measures should now be taken.

56. The CHAIRPERSON, endorsing the views expressed by Mr. Camara, said that any written communication to the State party should stress the need to comply with the Committees decision. Other issues could be discussed verbally at a meeting with the representatives of Canada.

57. Mr. MARIÑO MENÉNDEZ agreed that the note to the State party should not refer to possible follow-up measures. Issues such as monitoring, compensation for violation of the Convention and guarantees of future compliance could be discussed at a meeting with the State partys representatives, at which Ms. Gaer might represent the Committee.

58. Ms. GAER said she wished to place on record her concern that, for the first time, a State party had refused to comply with a decision of the Committee on the merits of a complaint. She considered the matter to be particularly serious since Canada had always cooperated very actively in the implementation of the Convention. The Committee would have to determine its substantive response at a subsequent meeting.

59. The CHAIRPERSON suggested, in keeping with the views expressed, that the note verbale to the State party should seek a meeting with its representatives while making no reference to any follow-up measures.

60. It was so decided.

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CAT, CAT/C/SR.749 (2006)

COMMITTEE AGAINST TORTURE

Thirty seventh session

SUMMARY RECORD OF THE FIRST PART (PUBLIC)* OF THE 749th MEETING

Held at the Palais Wilson, Geneva,

on Wednesday, 22 November 2006, at 3 p.m.

ORGANIZATIONAL AND OTHER MATTERS (continued)

Follow up procedures (CAT/C/37/R.2)

1. Mr. MARIÑO MENÉNDEZ, Rapporteur on follow up to communications, reporting on follow up to communications during the thirty sixth and thirty seventh sessions, drew attention to document CAT/C/37/R.2. It explained the status of communications on which the Committee had requested additional information or further action. Five States parties had not responded to the Committee's requests for information. The document contained detailed information on six communications.

2. With regard to the Dadar v. Canada case, it was proposed that the Committee should request the State party to provide, in response to the concern expressed by his counsel, information on the complainant's whereabouts and well being, if necessary with the assistance of the Embassy in Tehran.

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CAT, A/61/44 (2006)

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CHAPTER VI. CONSIDERATION OF COMPLAINTS UNDER ARTICLE 22 OF THE CONVENTION

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D. Follow‑up activities

75. At its twenty‑eighth session, in May 2002, the Committee against Torture revised its rules of procedure and established the function of a Rapporteur for follow‑up of decisions on complaints submitted under article 22. At its 527th meeting, on 16 May 2002, the Committee decided that the Rapporteur shall engage, inter alia, in the following activities: monitoring compliance with the Committees decisions by sending notes verbales to States parties enquiring about measures adopted pursuant to the Committees decisions; recommending to the Committee appropriate action upon the receipt of responses from States parties, in situations of non‑response, and upon the receipt henceforth of all letters from complainants concerning non‑implementation of the Committees decisions; meeting with representatives of the permanent missions of States parties to encourage compliance and to determine whether advisory services or technical assistance by the Office of the High Commissioner for Human Rights would be appropriate or desirable; conducting with the approval of the Committee follow‑up visits to States parties; preparing periodic reports to the Committee on his/her activities.

76. During its thirty‑fourth session, the Committee, through its Special Rapporteur on follow‑up to decisions, decided that in cases in which it had found violations of the Convention, including Decisions made by the Committee prior to the establishment of the follow‑up procedure, the States parties should be requested to provide information on all measures taken by them to implement the Committees Decisions.

77. In a follow‑up report presented to the Committee during the thirty‑fifth session, the Special Rapporteur on follow‑up to decisions provided information received from four States parties pursuant to this request: France; Serbia and Montenegro (in relation to 113/1998, Ristic); Switzerland; and Sweden. The following countries did not respond to the request: Austria; Canada (with respect to Tahir Hussain Khan, 15/1994); the Netherlands; Spain; and Serbia and Montenegro (in relation to 161/2000, Hajrizi Dzemajl, 171/2000, Dimitrov, and 207/2002, Dragan Dimitrijevic).

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79. During the thirty‑sixth session, the Special Rapporteur on follow‑up to decisions presented new follow‑up information that had been received since the thirty‑fifth session with respect to the following cases: Dadar v. Canada (258/2004), Thabti v. Tunisia (187/2001), Abdelli v. Tunisia (188/2001) and Ltaief v. Tunisia (189/2001) and Chipana v. Venezuela (110/1998). Represented below is a comprehensive report of replies received with regard to all cases in which the Committee has found violations of the Convention to date and in one case in which it did not find a violation but made a recommendation. Where there is no field entitled Committees decision at the end of the provision of information in a particular case, the follow‑up to the case in question is ongoing and further information has or will be requested of the complainant or the State party.

Complaints in which the Committee has found violations of the Convention up to the thirty‑fourth session

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State party

CANADA

Case

Tahir Hussain Khan, 15/1994

Nationality and country of removal if applicable

Pakistani to Pakistan

Views adopted on

15 November 1994

Issues and violations found

Removal ‑ article 3

Interim measures granted and State party response

Requested and acceded to by the State party

Remedy recommended

The State party has an obligation to refrain from forcibly returning Tahir Hussain Khan to Pakistan.

Due date for State party response

None

Date of reply

None

State party response

Authors response

None

Case

Falcon Rios, 133/1999

Nationality and country of removal if applicable

Mexican to Mexico

Views adopted on

30 November 2004

Issues and violations found	Removal ‑ article 3
Interim measures granted and State party response	Requested and acceded to by the State party
Remedy recommended	Relevant measures
Due date for State party response	None
Date of reply	None
State party response	On 9 March 2005, the State party provided information on follow‑up. It stated that the complainant had submitted a request for a risk assessment prior to return to Mexico and that the State party will inform the Committee of the outcome. If the complainant can establish one of the motives for protection under the Immigration and Protection of Refugees Law, he will be able to present a request for permanent residence in Canada. The Committees decision will be taken into account by the examining officer and the complainant will be heard orally if the Minister considers it necessary. Since the request for asylum was considered prior to the entry into force of the Immigration and Protection of Refugees Law, that is prior to June 2002, the immigration agent will not be restricted to assessing facts after the denial of the initial request but will be able to examine all the facts and information old and new presented by the complainant. In this context, it contests the Committees finding in paragraph 7.5 of its decision which found that only new information could be considered during such a review.

Authors response	None
Case	Dadar, 258/2004
Nationality and country of removal if applicable	Iranian to Iran
Views adopted on	3 November 2005
Issues and violations found	Removal ‑ article 3
Interim measures granted and State party response	Yes and State party acceded
Remedy recommended	The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days from the date of the transmittal of this decision, of the steps taken in response to the decision expressed above.
Due date for State party response	26 February 2006
Date of reply	22 March 2006, 24 April 2006

State party response

The State party refers to the note verbale from the Secretariat, dated 13 March 2006 (see below).

However, it informed the Committee that it intended to remove the complainant to Iran on 26 March 2006. It submitted that it undertook a review of the file in light of the Committees determination but reiterated its opinion that it does not share the Committees view that the complainant has established that he would face a substantial risk of torture if removed to Iran. It submitted that, it is for the national courts of the States parties to the Convention to evaluate the facts and evidence in a particular case.

It submitted that the reference made by the Ministerial Delegate that the risk that the complainant could represent for the Canadian public outweighed the risk that he would face in Iran was meant only as an alternative argument. The Ministerial Delegates primary conclusion, and the one adopted by the Federal Court, was that the complainant would not face a substantial risk of torture.

The State notes that the Committee does not refer to the complainants credibility, despite Canada having raised the issue in its submissions, and accepts much of the complainants evidence without credible and independent supporting documentation. Although the Committee suggested otherwise, the State party submits that it had questioned the allegations made with respect to the complainants involvement with the Canadian Intelligence and Security Service in its submissions. In addition, the letter, dated 4 April 2005, which the complainant provided to demonstrate his political involvement was provided after the State party had provided its submissions, and in any event contained no elaboration of his alleged activities. It recalls that the risk of being detained as such is not sufficient to trigger the protection of article 3.

Finally, the State party reminds the Committee that this is the first time that Canada will not follow this Committees decision on the merits of a case. Nevertheless, its position in this matter should not be interpreted as a sign of any disrespect for the Committees work in monitoring implementation of the Convention.

On 24 April 2006, the State party responded to the Rapporteurs note verbale of 31 March. It reiterates the Ministers findings and submits that the risk assessment was reaffirmed by the Federal Court on 24 March 2006. Thus, it remains the State partys position that it complied fully with its obligations under article 3.

Since Mr. Dadars return, the State party informs the Committee that a Canadian representative spoke with the complainants nephew who said that Mr. Dadar arrived in Tehran without incident, and has been staying with his family. Canada has no direct contact with Mr. Dadar since he was returned to Iran. In light of this information, as well as Canadas determination that Mr. Dadar did not face a substantial risk of torture upon return to Iran, the State party submits that it was not necessary for Canada to consider the issue of monitoring mechanisms in this case. It submits further that Mr. Dadar is now within the jurisdiction of Iran, which is a party to the ICCPR and bound to respect the rights protected under the Covenant, including the prohibition of torture and cruel, inhuman and degrading treatment or punishment. There are also United Nations special procedures, such as the Special Rapporteur on Torture, which would be available to Mr. Dadar if required.

Action taken

On 13 March 2006, following oral information from the State party on 10 March 2006, that the State party intended to deport the complainant in this case, the Special Rapporteur, sent a note verbale to the State party. The Rapporteur expressed concern that, despite the Committees decision, the State party intended to deport the complainant back to Iran. On behalf of the Committee, the Rapporteur reminded the State party that it has an obligation under article 3 not to expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. In view of the Committees decision (para. 8.9) that, substantial grounds exist for believing that the complainant may risk being subjected to torture if returned to Iran, the Rapporteur invited the State party to take action in conformity with the Committees decision.

Following the authors deportation on 26 March 2006, the Rapporteur, on 31 March 2006, sent another note verbale to the State party, on behalf of the Committee, in which the Rapporteur expressed grave concern at the State partys refusal to comply with its decision, and acknowledged, inter alia, that this was the first time, to the Committees knowledge, that any State party deported a complainant following a conclusion by this Committee that such a deportation would amount to a violation of article 3. The Rapporteur expressed concern not only for the complainant in this case but also deep concern for the global consequences of the State partys action with respect to compliance with the Committees decisions under article 22. The Rapporteur requested to be informed of any measures taken by the State party to ensure the complainants safety on arrival in the Islamic Republic of Iran, including the establishment of any monitoring mechanism through the State partys consular offices, or other procedural or substantive guarantees, and also requested information in due course on the complainants state of well‑being.

Committees decision

During the consideration of the follow‑up at its thirty‑sixth session, the Committee deplored the State partys failure to abide by its obligations under article 3, and found that the State party violated its obligations under article 3 not to, expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

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CAT, CAT/C/SR.776 (2007)

COMMITTEE AGAINST TORTURE

Thirty‑eighth session

SUMMARY RECORD OF THE FIRST PART (PUBLIC) OF THE 776th MEETING

Held at the Palais Wilson, Geneva,

on Tuesday, 15 May 2007, at 3 p.m.

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ORGANIZATIONAL AND OTHER MATTERS (agenda item 3)

Follow-up procedures (CAT/C/38/R.1)

1. The CHAIRPERSON invited the Committee to consider the report of on follow-up to individual communications as contained in document CAT/C/38/R.1.

2. Mr. SCHMIDT, Petitions Unit, introducing the report, said that it dealt with follow-up activities since the end of the Committees previous session, 24 November 2006...

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4. Mr. MARIÑO MENÉNDEZ, Rapporteur on follow up to communications, called the Committees attention to Falcn Ris v. Canada, in which the Committee had, in 2004, found a violation of Article 3 of the Convention and had requested the State party to take interim measures. Canada had reported on 9 March 2005 that the complainant had lodged a new complaint with the competent authorities seeking an assessment of the risk that he might be tortured if he were returned to Mexico. On 5 February 2007, the complainant had transmitted to the Committee the results of that inquiry, indicating that his request had been rejected and that he had to leave the territory of the State party. Accordingly, the Committee could ask the complainant to provide current information on his situation and request the State party to provide updated information on the case.

5. With regard to the Dadar v. Canada case, which was not mentioned in the document under consideration, the State party had sent the complainant back to his country of origin after concluding, contrary to the Committees observations of 23 November 2005 that he had not demonstrated that he ran a real risk of being tortured if he were returned. The Committee could therefore request information from the State party regarding the complainants current situation.

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14. The CHAIRPERSON said that if he heard no objection he would take it that the Committee wished to adopt the proposals of the Rapporteur

15. It was so decided.

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CAT, CAT/C/SR.801/Add.1 (2007)

COMMITTEE AGAINST TORTURE

Thirty‑ninth session

SUMMARY RECORD OF THE SECOND PART (PUBLIC)* OF THE 801st MEETING

Held at the Palais Wilson, Geneva,

on Monday, 19 November 2007, at 12.35 p.m.

...

CONSIDERATION OF COMMUNICATIONS UNDER ARTICLE 22 OF THE CONVENTION (continued)

...

Follow‑up on decisions adopted under article 22 of the Convention (CAT/C/39/R.1)

1. The CHAIRPERSON invited the Special Rapporteur on Follow‑up to introduce the report on follow‑up activities (CAT/C/39/R.1) relating to the Committee's decisions on individual complaints submitted under article 22 of the Convention.

2. Mr. MARIÑO MENÉNDEZ, Special Rapporteur on Follow‑up, summarized the comprehensive report on replies received in cases in which the Committee had found violations of the Convention.

...

7. In the case of Falcn Rios v. Canada (133/1999) the Committee did not need to take further action since the Canadian Government had said that it did not intend to implement the order to return the complainant to Mexico. However, he suggested that a letter should be sent to the Canadian Government asking it for any new information concerning the case, and reminding it that, in accordance with the Committee's decision, the complainant must not be returned to Mexico as he was still covered by the interim measures granted by the Government.

8. With regard to Mostafa Dadar v. Canada (258/2004) he suggested that the Committee should comply with the complainant's request not to remove the case from the follow‑up procedure, despite the State party's request to the contrary. Canada had in fact shown a lack of good faith in reneging on its undertaking to apply interim measures. The Committee should therefore request information from the State party on the complainant's situation.

9. The CHAIRPERSON suggested that the case be kept open until the Committee's fortieth session. In his view, there were insufficient grounds for keeping it open beyond then.

10. Mr. WANG Xuexian sought clarification of the counsel's assertion that his client was persona non grata in Iran. What was meant by that? And was it counsel's view or that of the Iranian Government?

11. Mr. MARIÑO MENÉNDEZ said that the expression had been used in counsel's case file and reproduced. The exact meaning was unclear.

CAT, A/62/44 (2007)

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VI. CONSIDERATION OF COMPLAINTS UNDER ARTICLE 22 OF THE CONVENTION

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Complaints in which the Committee has found violations of the Convention up to the thirty-eighth session

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State party	CANADA
Case	Tahir Hussain Khan, 15/1994
Nationality and country of removal if applicable	Pakistani to Pakistan
Views adopted on	15 November 1994
Issues and violations found	Removal ‑ article 3
Interim measures granted and State party response	Requested and acceded to by the State party
Remedy recommended	The State party has an obligation to refrain from forcibly returning Tahir Hussain Khan to Pakistan.
Due date for State party response	None
Date of reply	None
State party response	No information provided to Rapporteur, however during the discussion of the State party report to the Committee against Torture in May 2005, the State party stated that the complainant had not been deported.
Complainants response	None
Case	Falcon Rios, 133/1999
Nationality and country of removal if applicable	Mexican to Mexico
Views adopted on	30 November 2004
Issues and violations found	Removal ‑ article 3
Interim measures granted and State party response	Requested and acceded to by the State party
Remedy recommended	Relevant measures
Due date for State party response	None
Date of reply	None
State party response	On 9 March 2005, the State party provided information on follow‑up. It stated that the complainant had submitted a request for a risk assessment prior to return to Mexico and that the State party will inform the Committee of the outcome. If the complainant can establish one of the motives for protection under the Immigration and Protection of Refugees Law, he will be able to present a request for permanent residence in Canada. The Committees decision will be taken into account by the examining officer and the complainant will be heard orally if the Minister considers it necessary. Since the request for asylum was considered prior to the entry into force of the Immigration and Protection of Refugees Law, that is prior to June 2002, the immigration agent will not be restricted to assessing facts after the denial of the initial request but will be able to examine all the facts and information old and new presented by the complainant. In this context, it contests the Committees finding in paragraph 7.5 of its decision which found that only new information could be considered during such a review.
Complainants response	On 5 February 2007, the complainant forwarded the Committee a copy of the results of his risk assessment, in which his request was denied and he was asked to leave the State party. No further information was provided.
Case	Dadar, 258/2004
Nationality and country of removal if applicable	Iranian to Iran
Views adopted on	3 November 2005
Issues and violations found	Removal ‑ article 3
Interim measures granted and State party response	Yes and State party acceded
Remedy recommended	The Committee urges the State party, in accordance with rule 112, paragraph 5, of its rules of procedure, to inform it, within 90 days of the date of the transmittal of this decision, of the steps taken in response to the decision expressed above.
Due date for State party response	26 February 2006
Date of reply	Latest reply 5 April 2007 (Had previously responded on 22 March 2006 and 24 April 2006 - see annual report A/61/44 - and 9 August 2006).

State party response

The Committee will recall that the State party removed the complainant to Iran on 26 March 2006 despite a finding of a violation of the Convention. In its response of 24 April 2006, it stated that since his return a Canadian representative had spoken with the complainants nephew who said that Mr. Dadar had arrived in Tehran without incident, and was staying with his family. The State party had no direct contact with him since he was returned to Iran. In light of this information, as well as Canadas determination that he did not face a substantial risk of torture upon return to Iran, the State party submits that it was not necessary for it to consider the issue of monitoring mechanisms in this case. (For a full account of the State partys response see annual report A/61/44.)

On 9 August 2006, the State party informed the Committee that on 16 May 2006, the complainant came to the Canadian Embassy in Tehran to pursue certain personal and administrative issues in Canada unrelated to the allegations before the Committee. He did not complain of any ill‑treatment in Iran nor make any complaints about the Iranian authorities. As the complainants visit confirmed previous information received from his nephew, the Canadian authorities requested that this matter be removed from consideration under the follow-up procedure.

On 5 April 2007, the State party responded to counsels comments of 24 June 2006. It stated that it had no knowledge of the complainants state of well-being and that his further questioning by the Iranian authorities would have been due to the discovery of the Committees decision. The State party regards this decision as an intervening factor, subsequent to his return that it could not have taken into account at the time of his return. In addition, the complainants concerns do not disclose any complaint that, were it to be made to the Committee, could give rise to a violation of a right under the Convention. Questioning by the authorities does not amount to torture. In any event, his fear of torture during questioning is speculative and hypothetical. Given Irans ratification of the International Covenant on Civil and Political Rights and the possibility for the complainant to use United Nations special procedure mechanisms such as the Special Rapporteur on torture, it considers the United Nations better placed to make enquiries about the complainants well-being.

Complainants response

The complainants counsel has contested the State partys decision to deport the complainant despite the Committees findings. He has not to date provided information he may have on the authors situation since arriving in Iran.

The complainants counsel states that on 24 June 2006, he heard from the complainant who informed him that the Iranian authorities had delivered a copy of the Committees decision to his home and had requested his attendance for questioning. He was very worried over the telephone and counsel has not heard from him since. In addition, he states that Mr. Dadar is persona non grata in Iran. He cannot work or travel and is unable to obtain the medical treatment he had received in Canada to treat his condition.

Action taken

See the Committees annual report (A/61/44) for an account of the contents of notes verbales sent from the Special Rapporteur to the State party.

Committees decision

During the consideration of the follow‑up at its thirty‑sixth session, the Committee deplored the State partys failure to abide by its obligations under article 3, and found that the State party violated its obligations under article 3 not to, expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. The dialogue is ongoing.

...

CAT, CAT/C/SR.817 (2008)

COMMITTEE AGAINST TORTURE

Fortieth session

SUMMARY RECORD (PARTIAL)* OF THE 817th MEETING

Held at the Palais Wilson, Geneva,

on Friday, 2 May 2008, at 3 p.m.

Follow‑up on decisions adopted under article 22 of the Convention (continued) (CAT/C/40/R.1)

1. The CHAIRPERSON invited the Committee to resume its consideration of the report on follow‑up activities (CAT/C/40/R.1) relating to the Committee's decisions on individual complaints submitted under article 22 of the Convention.

2. Mr. MARIÑO MENÉNDEZ (Special Rapporteur on Follow‑up), referring to the case of Falcn Rios v. Canada (communication No. 133/1999), proposed that a sentence should be added in the last paragraph reflecting the Committee's decision to the effect that the complainant's failure to reply could be interpreted as a wish to discontinue the case.

3. The CHAIRPERSON said he took it that the Committee wished to adopt the proposal by Mr. Mariño Menndez.

4. It was so decided.

5. Mr. MARIÑO MENÉNDEZ drew attention to an error in the information provided on the Bachan Singh Sogi v. Canada case (communication No. 297/2006): India, the country to which the complainant had been returned, contrary to the Committee's recommendation, had signed but not ratified the Convention.

6. Ms. GAER said that even though India had not ratified the Convention, it should not contravene its provisions. Perhaps that could be reflected somehow in the paragraph on further action taken or required.

7. Mr. GALLEGOS CHIRIBOGA endorsed Ms. Gaer's suggestion. Furthermore, he did not consider it sufficient for the Committee merely to welcome the State party's (Canada's) adoption of the new law. Canada had failed to comply with the Committee's recommended remedy and should be expected to do more by providing reparation in line with the Convention.

8. Mr. MARIÑO MENÉNDEZ said that the adoption of the new law could be considered as a form of reparation: it would prevent any recurrence of the type of problem faced by the complainant.

9. The CHAIRPERSON said that the issue at stake was not whether India had ratified the Convention, but that Canada had failed to comply with the Committee's request for interim measures of protection by returning the complainant to India. The Committee should note that fact with regret in its letter to the State party and recommend the provision of full reparation.

10. Ms. BELMIR agreed that the question of whether India had ratified the Convention was irrelevant. She wondered what the Committee's jurisprudence was in such cases, expressing concern about setting a precedent for similar cases in future.

11. Mr. MARIÑO MENÉNDEZ agreed with Ms. Belmir that what was important was how the Committee dealt with Canada, and that it would complicate matters to enter into the territory of bilateral relations between India and Canada. He proposed that in terms of further action, the Committee should write to the State party noting with regret its interpretation of the interim measures of protection, while recognizing that they were not binding. It should also point out that India was not a party to the Convention. Instead of requesting full reparation or reparation in keeping with the Convention, the Committee should seek assurances that the complainant would not be subjected to torture in India.

12. The CHAIRPERSON said he took it that the Committee agreed to the further action proposed by Mr. Mariño Menndez; the text of the report would be amended accordingly.

13. It was so decided.

...

The discussion covered in the summary record ended at 4 p.m.

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* No summary records was prepared for the rest of the meeting.