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VIII.   National Courts

44.       Since the 1990s, courts in several member states and in Canada considering extradition requests and deportations have ruled that diplomatic assurances against torture and ill-treatment did not provide an effective safeguard against such abuse and halted transfers in these contexts. The following profiles of such cases indicate that courts rightly view diplomatic assurances of humane treatment from states that practice torture as inherently unreliable and insufficient to protect against Article 3 violations:

Netherlands

45.       On September 15, 2006, the Dutch Supreme Court upheld a Court of Appeal decision preventing the extradition of a Kurdish woman wanted in Turkey.⁵⁵ Nuriye Kesbir, an official of the PKK then resident in the Netherlands, was the subject of an extradition warrant from Turkey alleging that she had committed war crimes as a PKK military operative during the time she fought in the civil war in Turkey’s southeast. In May 2004 a Dutch district court determined that although her fears of torture and unfair trial in Turkey were not completely unfounded, there were insufficient grounds to halt the extradition. The Court gave exclusive authority to the government to either grant or reject the extradition request, but advised the Dutch minister of justice to seek enhanced diplomatic assurances against torture and unfair trial from Turkey.

46.       The Dutch Court of Appeal ruled on January 20, 2005, against Kesbir’s extradition, concluding that diplomatic assurances could not guarantee that she would not be tortured or ill-treated upon return to Turkey. On September 15, 2006, the Dutch Supreme Court upheld the decision of the Court of Appeal barring Kesbir’s extradition to Turkey. The Supreme Court issued a statement, concluding that “an extradition could result in a breach of European human rights laws” since Kesbir “runs a real risk of being tortured or suffering inhumane or humiliating treatment” if returned to Turkey.⁵⁶ The Supreme Court accepted the Court of Appeal’s reasoning that the diplomatic assurances against torture and ill-treatment offered by Turkey were insufficient to prevent such abuse were Kesbir to be returned.

United Kingdom

DD and AS v. The Secretary of State for the Home Department

47.       A British court ruled on April 27, 2007, that two terrorism suspects cannot be returned safely to Libya, despite promises of humane treatment from the Libyan government.⁵⁷ The Special Immigration Appeals Commission (SIAC) ruled that Libyan guarantees of humane treatment and fair trials for the men upon return were not reliable. In a “memorandum of understanding” (MOU) signed by the UK and Libyan governments in 2005, Tripoli gave assurances that no person returned under the MOU’s terms would be subjected to abuse.

48.       The Court concluded that the men, known only as “DD” and “AS,” would be at risk of torture and a “complete” denial of a fair trial if returned to Libya. They are alleged to be members of the Libyan Islamic Fighting Group (LIFG), an armed opposition group whose aim is the overthrow of Libyan leader Muammar al-Qadhafi. The SIAC concluded that torture is “extensively used against political opponents among whom Islamist extremists and LIFG members are the most hated by the Libyan Government, the Security Organisations and above all by Colonel Qadhafi.” It also noted that the incommunicado detention of political opponents, often without trial for many years, “is a disfiguring feature of Libyan justice and punishment.”

49.       The UK government argued that the Libyan government would respect the guarantees in the MOU in order to maintain good relations with Europe and the United States. But the SIAC ruled that the assurances in the memorandum are vulnerable to breach because the Libyan government continues to use incommunicado detention and torture against prisoners and detainees.

50.       The SIAC decision in the Libyan cases is in contrast to a February 2007 decision by the same court, which accepted that a similar agreement between Jordan and the UK was reliable.⁵⁸ However, Human Rights Watch has also documented the routine reliance on torture and abuse by the Jordanian internal security division.⁵⁹  The United Nations special rapporteur on torture confirmed these findings in his most recent report on Jordan.⁶⁰ Appeals are pending in both cases.

Russia v. Zakaev

51.       In 2003 Bow Street Magistrates’ Court in London considered Russia’s extradition request for the surrender of Akhmed Zakaev, an envoy for the Chechen government in exile, for alleged crimes committed in Chechnya in 1995 and 1996.⁶¹ The Deputy Minister responsible for the Russian prison system gave testimony in court that Zakaev would come to no harm in detention in Russia. The Court accepted that the trial process in Russia might be fair, but focused on “the conditions in which Mr. Zakaev would be likely to be detained and to consider whether they would have any prejudicial effect on his trial,” in particular whether he would be at risk of torture if surrendered.⁶² The Court considered material from the European Committee for the Prevention of Torture and the UN Committee Against Torture expressing concern about the continuing practice of torture and ill-treatment by Russian law enforcement officers operating in Chechnya.

52.       In addition to testimony from former Russian officials about the specific vulnerability of Chechens in the Russian criminal justice system, including the increased risk to a near certainty that they will be tortured or ill-treated, the Court heard evidence from a credible witness who said he made a statement, extracted under torture, to Russian authorities implicating Zakaev in the crimes of which he was accused. The Court gave particular weight to this evidence and came to the “inevitable conclusion” that if the Russian authorities resorted to torturing a witness, “there is a substantial risk that Mr. Zakaev would himself be subject to torture;”⁶³ and that such treatment would be meted out as a consequence of Mr. Zakaev’s nationality and political beliefs.

53.       In refusing to accept Russian diplomatic assurances, the Court in Zakaev relied on the fact that torture is widespread in Russia; that Chechens, in particular, are more likely than not to be tortured; that the Russian government could not have effective control over the vast prison system in such a manner as to guarantee that Zakaev will not be tortured; and that Russian guarantees of placement in a specific detention facility could not be relied upon. Extradition was refused.

Canada

Lai Cheong Sing v. Minister of Citizenship and Immigration

54.       In May 2006 the Federal Court of Canada halted the deportation of Lai Cheong Sing, accused by the Chinese authorities of smuggling and bribery.⁶⁴ The Chinese government offered diplomatic assurances against his execution and torture, notwithstanding the fact that co-defendants in Lai’s case had already been executed and family members of the co-defendants ill-treated in China. Acknowledging the pervasive practice of torture and the use of the death penalty in China, the Court halted Lai’s imminent deportation stating, “The issue of assurances lies at the heart of the debate” and that there was a serious likelihood of jeopardy to Lai’s life or safety if he were returned to China.⁶⁵

Mahjoub v. Minister of Citizenship and Immigration

55.       On December 14, 2006, a Canadian federal court ordered the government to conduct a new risk assessment with respect to a January 2006 decision by the minister of immigration and citizenship to deport Egyptian national Mohammad Zeki Mahjoub, in detention under a security certificate since June 2000 and a recognized refugee.⁶⁶  The Court concluded that the government “consistently ignored critical evidence, failed to take important factors into consideration and arbitrarily relied on selected evidence. This flawed approach can be considered nothing short of patently unreasonable with regard to the substantial risk of torture issue.”⁶⁷  With respect to the Egyptian government’s diplomatic assurances that Mahjoub would not be tortured or otherwise ill-treated upon return, the Court agreed with Mahjoub that the government “disregarded the bulk of evidence from a multitude of sources that cited Egypt’s non-compliance with assurances.”⁶⁸