Empty Promises

Diplomatic Assurances No Safeguard Against Torture

[1] The word "return" includes any process leading to the involuntary return of a non-national either to his or her country of origin or to a third country, including by deportation, expulsion, extradition and rendition.

 

[2] Diplomatic assurances can also include guarantees against other forms of ill-treatment not rising to the level of torture, for a fair trial, or against application of the death penalty. While it is beyond the scope of this brief to discuss diplomatic assurances in the context of the death penalty, such assurances differ from the relatively novel practice of assurances against torture and ill-treatment in several respects. It is generally more straightforward to monitor a requesting state's compliance with assurances regarding the death penalty than with assurances against torture or ill-treatment as execution is a legal outcome, usually more immediately visible than torture or ill-treatment in detention, which by nature are illegal and practiced in secret. Thus, assurances against torture and ill-treatment should not be considered as a natural extension of the practice of securing assurances against execution. See section below on Canada for more on the distinction between the two.

 

[3] See, in particular, the section below on the United States.

 

[4] Security Council Resolution 1456 (2003) makes clear that: "States must ensure that any measure taken to combat terrorism complies with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law," para. 6 [online] http://ods-dds-ny.un.org/doc/UNDOC/GEN/N03/216/05/PDF/N0321605.pdf?OpenElement

 (retrieved March 31, 2004).

[5] The prohibition against torture and ill-treatment, including the prohibition against returning a person to a country where he or she is at risk of torture or ill-treatment, is absolute and permits no exceptions; states cannot derogate from this obligation. The prohibition is enshrined in articles 1 and 3 of the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT); article 7 of the International Covenant on Civil and Political Rights (ICCPR); article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR); article 5 of the American Convention on Human Rights (ACHR); and article 5 of the African Charter on Human and Peoples' Rights (Banjul Charter). The prohibition against torture has risen to the level of jus cogens and is a peremptory norm of international law. For the purposes of this paper, the word "torture" when used alone includes cruel, inhuman, or degrading treatment or punishment in conformity with the instruments noted above and the U.N. Human Rights Committee's General Comment No. 20 (1992), which states: "In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end." Though the language of non-refoulement is most commonly associated with the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees, the obligation of non-refoulement has much broader application vis-à-vis the CAT and other instruments referenced above, and thus applies to the return of any person at risk of torture or ill-treatment, not only refugees.

 

[6] See Attia v. Sweden, CAT/C/31/D/199/2002, November 24, 2003, para. 4.4  [online] http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/419f36fabc1ba168c1256df2002cb2f8?Opendocument (retrieved March 25, 2004).

[7] See International Helsinki Federation Appeal, "Violations of the Rights of Chechens in Georgia," December 23, 2002 [online] http://www.ihf-hr.org/viewbinary/viewhtml.php?doc_id=3500 (retrieved March 25, 2004).

 

[8] Security Council Resolution 1456 (2003), op. cit., para. 6.

[9] Security Council Counter-Terrorism Committee, Briefing by Sir Nigel Rodley, Vice Chairperson, U.N. Human Rights Committee, "Human Rights and Counter-Terrorism Measures," June 19, 2003, para. 3 [online] http://www.unhchr.ch/huricane/huricane.nsf/0/EE1AC683F3B6385EC1256E4C00313DF5?opendocument (retrieved March 25, 2004).

[10] Supplementary report of Slovakia to the CTC, July 2, 2002, pages 15, 20-21 [online] http://ods-dds-ny.un.org/doc/UNDOC/GEN/N02/479/33/IMG/N0247933.pdf?OpenElement (retrieved March 31, 2004).

 

[11] Security Council Counter-Terrorism Committee, Briefing by Sir Nigel Rodley, op. cit., para. 11.

 

[12] Ibid., paras. 10 and 11. Rodley refers to the Office of the High Commissioner for Human Rights (OHCHR), "Note to the Chair of the Counter-Terrorism Committee: A Human Rights Perspective on Counter-Terrorist Measures," September 23, 2002 [online] http://www.un.org/Docs/sc/committees/1373/ohchr1.htm (retrieved March 25, 2004) and OHCHR,  "Further Guidance Note on Compliance with International Human Rights Standards," September 23, 2002 [online] http://www.un.org/Docs/sc/committees/1373/ohchr2.htm (retrieved March 25, 2004).

[13] Report of the Special Rapporteur on Torture, Theo van Boven, to the United Nations Commission on Human Rights, 58th Session, E/CN.4/2002/137, February 26, 2002, para. 15.

[14] Interim report of the Special Rapporteur on Torture, Theo van Boven, to the General Assembly A/57/173, July 2, 2002. The Special Rapporteur's July 2003 report to the General Assembly states that both the U.N Human Rights Committee and the Committee against Torture have also recently reaffirmed the absolute nature of the principle of non-refoulement "and that expulsion of those suspected of terrorism to other countries must be accompanied by an effective system to closely monitor their fate upon return, with a view to ensuring that they will be treated with respect for their human dignity." Report by the Special Rapporteur on Torture, Theo van Boven, to the United Nations General Assembly, A/58/120, July 3, 2003, para. 15.

[15] A recent experience of the Special Rapporteur himself would seem to illustrate the need for assurances made in good faith and the capacity to comply with those assurances. In his February 2003 report on the question of torture in Uzbekistan, the Special Rapporteur details his "aborted visit to Jaslyk [penal] colony."  Despite indicating to the Uzbek authorities, upon whose invitation van Boven was in the country, that he required six hours to evaluate conditions in Jaslyk, "often cited for its hardship conditions and inhuman practices," the itinerary and plane scheduled for the Special Rapporteur and arranged by the Uzbek authorities left van Boven only two hours for his assessment. The Special Rapporteur thus refused to inspect the colony and instead discussed deaths in custody with its director and conducted a few confidential interviews with inmates. However, the Special Rapporteur "noted with concern that these confidential interviews were abruptly disrupted on several occasions by the government official accompanying the Special Rapporteur's delegation." The Special Rapporteur regretted that he was unable to carry out his visit to Jaslyk "in a satisfactory and comprehensive manner." See Report of the Special Rapporteur on Torture, Mission to Uzbekistan, E/CN.4/2003/68/add.2, February 3, 2003, para. 49 [online] http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/29d0f1eaf87cf3eac1256ce9005a0170/$FILE/G0310766.doc (retrieved March 31, 2004). The Special Rapporteur concluded by regretting that the mission's terms of reference (presumably agreed in advance) were not fully respected. Ibid., para. 60.

[16] Op. cit., footnote 6. See also section below on Sweden.

[17] Submission of the Swedish government to the U.N. Human Rights Committee ("Information requested by the Human Rights Committee from the Government of Sweden), May 6, 2003, on file with Human Rights Watch.

[18] In December 2002, the U.N. Committee against Torture expressed concerns regarding "the many consistent reports received concerning the persistence of the phenomenon of torture and ill-treatment of detainees by law enforcement officials [in Egypt]," "widespread evidence of torture and ill-treatment in administrative premises under the control of the State Security Investigation Department," and "the fact that victims of torture and ill-treatment have no direct access to the courts to lodge complaints against law enforcement officials." See Conclusions and Recommendations of the Committee against Torture on the Fourth Periodic Report of Egypt, CAT/C/CR/29/4, December 23, 2002 [online] http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.29.4.En?Opendocument (retrieved March 31, 2004).

[19] Report of the Special Rapporteur on Torture, Mission to Uzbekistan, February 2003, op. cit., para. 68.

[20] Ibid., para. 69.

[21] In his presentation to the CTC noted above, Rodley reaffirmed the absolute prohibition against returns to risk of torture, but also said: "Let me at once point out that this does not imply the granting of safe havens. Measures may be taken to ensure that, if returned, the person will not in fact be subjected to the feared violation. But those measures would need to be serious and effective." Security Council Counter-Terrorism Committee, Briefing by Sir Nigel Rodley, op. cit., para. 12. Assuming that this is a reference to securing diplomatic assurances, such a formulation for this alleged safeguard to torture is extremely vague-and thus open to various interpretations. The prohibition against torture is absolute and permits no exceptions. As such, any proposed safeguards must be fully articulated to ensure unequivocally that no violation will occur.

[22] General Comment No. 20 (1992), op. cit., para. 9. Moreover, in March 2004, the Human Rights Committee adopted General Comment No. 31 on ICCPR article 2 regarding "The Nature of the General Legal Obligation Imposed on States Parties to the Covenant." Paragraph 12 reads: ". . . the article 2 obligation requiring that States Parties respect and ensure the Covenant rights for all persons in their territory and all persons under their control entails an obligation not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable harm, such as that contemplated by articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may subsequently be removed. The relevant judicial and administrative authorities should be made aware of the need to ensure compliance with the Covenant obligations in such matters," General Comment No. 31, CCPR/C/74/CRP.4/Rev.5, March 29, 2004.

 

[23] Human Rights Committee, Concluding Observations on the Fifth Periodic Report of Sweden, CCPR/C/74/SWE, April 24, 2002, para. 12. The failure of the Swedish government to effect any monitoring within the first five weeks of return is particularly disturbing. The International Committee of the Red Cross (ICRC), U.N., and other intergovernmental, nongovernmental, and humanitarian organizations, have concluded that detainees are most at risk for torture and ill-treatment within the first forty-eight hours of custody. See Human Rights Watch, "The Legal Prohibition against Torture" A Human Rights Watch Q and A  March 2003 [online] http://www.hrw.org/press/2001/11/TortureQandA.htm (retrieved March 25, 2004). The Committee took the extraordinary step of requiring Sweden to report back to it in one year, instead of the standard five, regarding the steps the government took to ensure Egyptian compliance with the assurances and to offer evidence that the men were in fact not subject to treatment contrary to ICCPR article 7. The special session, held in July-August 2003, was closed. No public statements were issued by the Committee, but its annual report to the General Assembly made clear that it was not fully satisfied with the Swedish government's response and that the Committee had decided to pursue certain outstanding issues with respect to the cases. See Report of the Human Rights Committee to the General Assembly, A/58/40(Vol. I), November 1, 2003.

[24]Human Rights Committee, Concluding Observations on the Fourth Periodic Report of New Zealand, CCPR/CO/75/NZL, August 7, 2002, para. 11.

[25] Ibid.

[26] CAT article 3 states: "No party shall 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."

[27]Tapia Paez v. Sweden, Communication No. 39/1996, April 28, 1997.

[28] See Attia v. Sweden, CAT/C/31/D/199/2002, November 24, 2003 [online] http://www.unhchr.ch/tbs/doc.nsf/MasterFrameView/419f36fabc1ba168c1256df2002cb2f8?Opendocument (retrieved March 25, 2004).

[29] See U.N. Special Rapporteur on Torture, General Recommendations, E/CN.4/2003/68, para. (f) regarding prison monitoring and private visits [online] http://www.unhchr.ch/html/menu2/7/b/torture/recommendations.doc (retrieved March 24, 2004); and International Committee of the Red Cross, "How Visits by the ICRC can Help Prisoners Cope with the Effects of Traumatic Stress," Section on Private and Confidential Interviews with Prisoners, January 1, 1996 [online] http://www.icrc.org/web/eng/siteeng0.nsf/iwpList302/219CF73383F594D2C1256B660059956E (retrieved March 24, 2004).

[30] Attia v. Sweden, op. cit., paras. 4.5, 4.7, 4.14., and 9.4.

[31] Sibylle Kapferer, The Interface between Extradition and Asylum, Legal and Protection Policy Research Series, Department of International Protection, United Nations High Commissioner for Refugees, PPLA/2203/05, November 2003, para. 137 [online] http://www.unhcr.ch/cgi-bin/texis/vtx/home/+swwBmeRKn9CwwwwnwwwwwwwhFqA72ZR0gRfZNtFqrpGdBnqBAFqA72ZR0gRfZNcFq35oxOccnaAwphnGnGDzmxwwwwwww/opendoc.pdf (retrieved March 31, 2004). This study is currently under consideration by UNHCR.

[32] 8 C.F.R. § 208.18(c) - Diplomatic assurances against torture obtained by the Secretary of State.

(1) The Secretary of State may forward to the Attorney General assurances that the Secretary has obtained from the government of a specific country that an alien would not be tortured there if the alien were removed to that country. (2) If the Secretary of State forwards assurances described in paragraph (c)(1) of this section to the Attorney General for consideration by the Attorney General or her delegates under this paragraph, the Attorney General shall determine, in consultation with the Secretary of State, whether the assurances are sufficiently reliable to allow the alien's removal to that country consistent with Article 3 of the Convention against Torture…(3) Once assurances are provided under paragraph (c)(2) of this section, the alien's claim for protection under the Convention against Torture shall not be considered further by an immigration judge, the Board of Immigration Appeals, or an asylum officer.

[33] Regulations Concerning the Convention against Torture, 64 FR 8478, 8484, February 19, 1999.

 

[34] Written Declaration by Samuel M. Witten, Assistant Legal Adviser for Law Enforcement and Intelligence in the Office of the Legal Adviser of the U.S. Department of State, Cornejo-Barreto v. Seifert, United States District Court for the Central District of California Southern Division, Case No. 01-cv-662-AHS, October 2001, para. 8 [online]http://www.state.gov/documents/organization/16513.pdf (retrieved March 24, 2004).

[35] Ibid., para. 9.

[36] Ibid.

[37] Ibid. para. 10.

[38] Ibid.

[39] The government includes other groups, including human rights organizations, as possible post-return monitors. The acknowledgement of the independent nongovernmental sector and its inclusion is welcome. However, it cannot serve as a substitute for active and on-going involvement of the state that surrenders a person to a country based on diplomatic assurances. Many human rights groups are marginalized by governments in states that practice torture. Notwithstanding the inherent problems with post-return monitoring noted above, responsibility for securing access to governmental authorities and holding them accountable for compliance with diplomatic assurances must rest primarily with the surrendering government.

 

[40] Maher Arar's complete statement to media, CanWest News Service, November 4, 2003.

[41] "Spokesmen at the Justice Department and the CIA declined to comment on why they believed the Syrian assurances to be credible." Dana Priest, "Man was Deported after Syrian Assurances," Washington Post, November 20, 2003, page A24. See also United States Department of State Country Reports on Human Rights Practices for 2002: Syria, published in March 2003 [online] http://www.state.gov/g/drl/rls/hrrpt/2002/18289.htm (retrieved March 26, 2004).

 

[42] According to press reports, Imad Moustafa, the charge d'affaires at the Syrian Embassy in Washington, denied Arar was tortured. Dana Priest, "Top Justice Aid Approved Sending Suspect to Syria," Washington Post, November 19, 2003, page A28. Priest quotes Moustafa as saying, "… Syria had no reason to imprison Arar. He said U.S. intelligence officials told their Syrian counterparts that Arar was an al-Qaeda member. Syria agreed to take him as a favor and to win goodwill of the United States, he said." Ibid.

[43] The full text of the Arar complaint can be found [online] http://www.ccr-ny.org/v2/legal/september_11th/docs/ArarComplaint.pdf (retrieved March 26, 2004).

[44] Letter from Clark Kent Ervin, DHS Inspector General, to Hon. John Conyers, January 9, 2004, on file with Human Rights Watch.

[45] The terms of reference of the inquiry, issued in February 2004, can be found [online] http://www.psepc-sppcc.gc.ca/publications/news/20040205_e.asp (retrieved March 26, 2004).

[46] Gar Pardy, one of Canada's most senior diplomats at the time, stated that "The fact that you went looking for assurances, which is reflected here, tells you that even in the minds of the people who made this decision…I mean, there were some second thoughts." 60 Minutes II, "His Year in Hell," January 21, 2004 [online] http://www.cbsnews.com/stories/2004/01/21/60II/main594974.shtml (retrieved March 26, 2004).

[47] See Human Rights Watch, "United States: Alleged Transfer of Maher Arar to Syria, Letter to Department of Defense General Counsel Haynes Co-Signed by Amnesty International, The Center for Victims of Torture, International Human Rights Law Group, Lawyers Committee for Human Rights, Minnesota Advocates for Human Rights, Physicians for Human Rights, and RFK Memorial Center for Human Rights" A Human Rights Watch Letter, November 17, 2003 [online] http://www.hrw.org/press/2003/11/us-ltr111703.htm (retrieved March 26, 2004).

[48] Manickavasagam Suresh v. The Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v. Canada), 2002, SCC 1. File No. 27790, January 11, 2002 [online] http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html (retrieved March 26, 2004).

[49] The court noted that, at the time the case was decided, under section 53(1)(b) of Canada's Immigration Act regarding the review of decisions based on national security grounds and return to risk of torture, "there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal-no procedures at all, in fact." Ibid., para. 117. The court determined that the U.N. Convention against Torture's explicit prohibition against deportation where there are "substantial grounds" for believing a person would be in danger of torture gave rise to a duty to provide procedural safeguards in national security cases where a person would be at risk of torture if returned: "Given Canada's commitment to the CAT, we find that … the phrase "substantial grounds" raises a duty to afford an opportunity to demonstrate and defend those grounds." Ibid., para. 119.

[50] Ibid., para. 123.

[51] Ibid.,para. 124.

[52] Ibid., para. 125.

[53] Minister of Justice for Canada v. Rodolfo Pacificador (Canada v. Pacificador), Court of Appeal for Ontario, No. C32995, August 1, 2002.

[54] Ibid., para. 56. The Supreme Court of Canada has ruled that a Minister's surrender decision violates the Canadian Charter of Rights and Freedoms where the person subject to surrender would face a situation that is "simply unacceptable" or where the nature of the requesting country's criminal procedures or penalties "sufficiently shocks the conscience." United States of America v. Allard and Charette, 33 CCC (3d) 501 SCC, 1987; R. v. Schmidt, 333 CCC (3d) 193 SCC, 1987.

[55] Ibid., para. 53.

[56] Ibid.

[57] Ibid. para. 15.

58 Ibid., para. 14.

[59] Ibid. para. 53.

[60] Ibid., para. 51.

[61] Ibid. para. 54. In February 2003, the Supreme Court of Canada dismissed the government's appeal in the Pacificador  case.

 [62] Article 11: Capital Punishment states that: "If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death-penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death-penalty will not be carried out."  European Convention on Extradition (1957) [online] http://conventions.coe.int/Treaty/en/Treaties/Html/024.htm (retrieved March 26, 2004).

[63] Article 3 states that: "When a Contracting Party requests from another Contracting Party the extradition of a person for the purpose of carrying out a sentence or detention order imposed by a decision rendered against him in absentia, the requested Party may refuse to extradite for this purpose if, in its opinion, the proceedings leading to the judgment did not satisfy the minimum rights of defence recognised as due to everyone charged with criminal offence. However, extradition shall be granted if the requesting Party gives an assurance considered sufficient to guarantee to the person claimed the right to a retrial which safeguards the rights of defence."  Second Additional Protocol to the European Convention on Extradition (1978) [online] http://conventions.coe.int/Treaty/en/Treaties/Html/098.htm (retrieved March 26, 2004).

 

[64] The European Arrest Warrant (EAW) is intended eventually to replace the European Convention on Extradition and the extradition provisions of the European Convention on the Suppression of Terrorism in all the E.U. member states. On January 1, 2004, the EAW came into force in Belgium, Denmark, Finland, Ireland, Portugal, Spain, Sweden, and the U.K. See Council Framework Decision on a European Arrest Warrant, 2002/584/JHA, June 13, 2002.

[65] "No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment." Ibid., preamble, para 13.

[66] Ibid., article 5.

[67] Article 4.

1 The text of Article 5 of the Convention shall become paragraph 1 of this article.

2 The text of Article 5 of the Convention shall be supplemented by the following paragraphs:

"2. Nothing in this Convention shall be interpreted as imposing on the requested State an obligation to extradite if the person subject of the extradition request risks being exposed to torture.

3. Nothing in this Convention shall be interpreted either as imposing on the requested State an obligation to extradite if the person subject of the extradition request risks being exposed to the death penalty or, where the law of the requested State does not allow for life imprisonment, to life imprisonment without the possibility of parole, unless under applicable extradition treaties the requested State is under the obligation to extradite if the requesting State gives such assurance as the requested State considers sufficient that the death penalty will not be imposed or, where imposed, will not be carried out, or that the person concerned will not be subject to life imprisonment without the possibility of parole." Protocol amending the European  Convention for the Suppression of Terrorism, Strasbourg  15.V.2003 [online] http://conventions.coe.int/Treaty/en/Treaties/Html/190.htm (retrieved March 26, 2004).

[68] "It is obvious that a State applying this article should provide the requesting State with reasons for its refusal to grant the extradition request. It is by virtue of the same principle that Article 18 paragraph 2 of the European Convention on Extradition provides that "reasons shall be given for any complete or partial rejection. . . " Draft Explanatory Report [online] http://conventions.coe.int/Treaty/EN/Reports/Html/090-rev.htm (retrieved March 26, 2004).

[69] Guideline IV, [online] http://www.coe.int/T/E/Human_rights/h-inf(2002)8eng.pdf (retrieved March 26, 2004).

[70] Ibid., Guideline XIII.

[71] Ibid., Guideline XV.

[72] Ibid., Guideline XIII(2)(i) and (ii). The same formula, obliging states to seek assurances with respect to the potential application of the death penalty, but making no similar provision for extraditions where a person is at risk of torture, is articulated in the Parliamentary Assembly of the Council of Europe resolution on combating terrorism and respect for human rights, Res. 1271(2002), January 24, 2002.

[73] Chahal v. United Kingdom, 70/1995/576/662, November 15, 1996 [online] http://www.worldlii.org/int/cases/IIHRL/1996/93.html (retrieved March 26, 2004).

[74] Ibid., para. 37.

[75] Ibid., paras. 104 and 105.

 

[76] Application No. 36378/02, October 4, 2002.

[77]These "interim measures" were requested under Rule 39 of the Rules of Court which state that: "The Chamber or, where appropriate, its President may, at the request of a party or of any other person concerned, or of its own motion, indicate to the parties any interim measure which it considers should be adopted in the interests of the parties or of the proper conduct of the proceedings before it…. The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated. See Registrar of the European Court of Human Rights, Shamayev and 12 Others v. Georgia and Russia, (application no. 36378/02), Press Release No. 486, October 10, 2002 [online]  http://www.echr.coe.int/eng/press/2002/oct/chechensvgeorgia%26russia.htm (retrieved March 26, 2004).

[78] Rule 39 of the Rules of the Court provides for interim measures. According to the International Commission of Jurists:

Interim or provisional measures are an institution of international procedural law recognized within the framework of international disputes. The object and purpose of these measures is to preserve the rights claimed by the parties to the procedure until the dispute is settled by the competent international organ, as well as to ensure the integrity and effectiveness of the decision on the merits, while avoiding that harm be done to the rights claimed by the parties pendente litis, which would annul the effects of the action taken by the competent organ. Interim or provisional measures enable the State concerned to fulfill its obligation and to conform to the final decision of the international organ and, if need be, to proceed to reparation of the principle fact, which includes restitution when this is possible.

See Amicus Curiae by the International Commission of Jurists relating to the Interim Measures of the  European Court of Human Rights (46827/99 Mamatkulov and 46951/99 Abdurasuloviç v. Turkey), October 2001 [online] http://www.icj.org/news.php3?id_article=3228&lang=en (retrieved March 24, 2004).

[79] Registrar of the European Court of Human Rights, Shamayev and 12 Others v. Georgia and Russia, (application no. 36378/02), Press Release No. 552, November 6, 2002 [online] http://www.echr.coe.int/eng/press/2002/nov/shamayevrule39%282%29epress.htm (retrieved March 26, 2004).

[80] Registrar of the European Court of Human Rights, Shamayev and 12 Others v. Georgia and Russia, (application no. 36378/02), Press Release No. 601, November 26, 2002 [online] http://www.echr.coe.int/eng/press/2002/nov/shamayev26.11.2002.htm (retrieved March 26, 2004).

[81] Registrar of the European Court of Human Rights, Shamayev and 12 Others v. Georgia and Russia, (application no. 36378/02), Press Release No. 455. September 19, 2003 [online] http://www.echr.coe.int/eng/press/2003/sept/decisionshamayev%28admissible%2919092003.htm (retrieved March 26, 2003). The Court can engage in its own fact-finding under Rule 42 Sec. 2 of its Rules of Procedure (measures for taking evidence).

[82] Registrar of the European Court of Human Rights, Shamayev and 12 Others v. Georgia and Russia, (application no. 36378/02), Press Release No. 528, October 24, 2003 [online] http://www.echr.coe.int/Press/Eng/query.idq?CiRestriction=528&CiScope=E%3A%5Cdata%5Cinternet%5Cechr%5CEng%5CPress&CiMaxRecordsPerPage=10&TemplateName=query&CiSort=rank%5Bd%5D&HTMLQueryForm=query.htm (retrieved March 26, 2004).

[83] Ibid.

[84] The European Committee for the Prevention of Torture (CPT) has repeatedly expressed concern about the torture and ill-treatment of Chechens in the Russian Federation. See, for example, CPT, "Public Statement Concerning the Chechen Republic of the Russian Federation," July 10, 2003 [online] http://www.cpt.coe.int/documents/rus/2003-33-inf-eng.htm (retrieved March 24, 2004); see also, Human Rights Watch, Welcome to Hell: Arbitrary Detention, Torture, and Extortion in Chechnya, October 2000; Swept Under: Torture, Forced Disappearances, and Extrajudicial Killings during Sweep Operations in Chechnya, March 2002.

[85] Email communication from the European Court of Human Rights Registry to Human Rights Watch, March 23, 2004.

[86]Mamatkulov and Abdurasulovic [Askarov] v. Turkey, Application Nos. 46827/99 and 46951/99 respectively. The judgment in the first chamber was issued on February 6, 2003 [online http://hudoc.echr.coe.int/hudoc/ViewRoot.asp?Item=0&Action=Html&X=323155210&Notice=0&Noticemode=&RelatedMode=0 (retrieved March 26, 2004; hereinafter "First Chamber Decision"). The title of the first chamber decision incorrectly identified Abdurasulovic Askarov as "Abdurasulovic;" subsequent Court documents correctly identify him as Askarov. In April 2003, the Turkish government appealed the February 2003 decision to the Court's President, requesting that the case be referred to the Grand Chamber, to be considered de novo before the entire panel of ECHR judges. A public hearing before the Grand Chamber was held on March 17, 2004. See Registrar of the European Court of Human Rights, Mamatkulov and Askarov v. Turkey, Press Release No. 131, March 17, 2004 [online] http://www.echr.coe.int/eng/press/2004/mar/HearingMamatkukovvTurkey170304.htm (retrieved March 26, 2004). A final decision on the case is forthcoming.

[87] Mamatkulov and Askarov, First Chamber Decision, February 6, 2003, para. 29.

[88] Independent Muslims in Uzbekistan practice their faith outside of state-run mosques, and pray at home or otherwise shun state control in determining and practicing their religion.

[89] The question of whether or not requests for interim measures are legally binding on states' parties to the European Convention on Human Rights is a key issue in this case. See Amicus Curiae by the International Commission of Jurists relating to the Interim Measures of the  European Court of Human Rights (46827/99 Mamatkulov and 46951/99 Abdurasuloviç v. Turkey), October 2001[online] http://www.icj.org/news.php3?id_article=3228&lang=en (retrieved March 24, 2004).

[90] The Court had available to it materials on repression of independent Muslims and ERK party members in Uzbekistan documenting abuse and concern by Amnesty International and the United Nations.

[91] The decision stated:

[Solih] will almost certainly face torture and illegal imprisonment by Uzbek judicial bodies, as well as possible threat of death. Independent international organizations documented the systematic use of torture methods by the Uzbek police, in particular when dealing with political prisoners. In accordance with this, by extraditing [Solih], the Czech Republic would violate Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms…"

Judgment of the Prague City Court, Judge Veronika Boháčková presiding, December 14, 2001, on file with Human Rights Watch. The Court was aware of this decision as it was featured in Amnesty International materials submitted by Mamatkulov's and Askarov's lawyer.

[92] First Chamber Decision, paras. 34-35.

[93] Ibid., para. 36.

[94] See Human Rights Watch, "Mamatkulov and Askarov v. Turkey: Intervention Submitted by Human Rights Watch and the AIRE Centre," January 28, 2004 [online] http://hrw.org/backgrounder/eca/turkey/eu-submission.pdf (retrieved March 26, 2004).

[95] Report of the Special Rapporteur on Torture, Mission to Uzbekistan, E/CN.4/2003/68/add.2, February 3, 2003 [online] http://www.unhchr.ch/Huridocda/Huridoca.nsf/0/29d0f1eaf87cf3eac1256ce9005a0170/$FILE/G0310766.doc (retrieved March 26, 2004).

[96] The Government of the Russian Federation v. Akhmed Zakaev, Bow Street Magistrates' Court, Decision of Hon. T. Workman, November 13, 2003 [online] http://www.tjetjenien.org/Bowstreetmag.htm (retrieved March 26, 2004).

[97] Ibid., page 7.

[98] The U.K. Extradition Act has since been amended. See Extradition Act 2003 [online] http://www.hmso.gov.uk/acts/acts2003/20030041.htm (retrieved March 26, 2004).

[99] 1989 Act at Article 6(1)(d).

[100] Russia v. Zakaev, page 7.

[101] Ibid.

[102] Ibid., page 10.

[103] Ibid. page 10.

[104] Ibid., page 7.

[105]Oberlandesgericht Duesseldorf, in the case of Metin Kaplan, 4Ausl (a) 308/02-147.203-204.03III, May 27, 2003. Kaplan's group was banned in Germany in the aftermath of the September 11 attacks in the United States. In December 2003, German police conducted a nationwide operation against Kaplan's followers, taking many into custody. Metin Kaplan was released after questioning. See "German Police in Nationwide Sweep against Islamists," Agence France Presse, December 11, 2003; "Turkey: German Police in Raid against Turkish Extremist Group," Global News Wire, December 15, 2003; and "Banned Turkish Islamist Group Reportedly Still Active in Germany," BBC Monitoring International Reports, February 16, 2004.

[106] Oberlandesgericht Duesseldorf, in the case of Metin Kaplan, op. cit., page 15. Article 15 of the CAT reads: "Each state party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made."

[107] Ibid., page 23.

 

[108] Ibid.

[109] Joint Statement German Federal Ministry of Interior and Ministry of Interior of North Rhine Westphalia, "Schily and Behrens Regret Decision of OLG Duesseldorf in Kaplan Case," Berlin, May 27, 2003.

[110] Ibid. The government was referring to immigration-related expulsion orders issued by the city of Cologne that Kaplan was challenging at the time. The government's statement also refers to the fact that Kaplan was challenging the removal of his refugee status in court as well.

[111] Ibid.

[112]" German Minister Pursues 'Caliph of Cologne' Extradition in Turkey," Deutsch Welle, September 16, 2003 [online] http://www.deutschewelle.de/english/0,1003,1432_A_972238_1_A,00.html (retrieved March 26, 2004). Deutsch Welle also reported that Schily told the newsmagazine Der Spiegel that the Kaplan case could become "'a symbol for the weakness of our state' if it proves impossible to deport Kaplan." Ibid.

[113] "Germany, Turkey Fail to Agree on Extradition of Islamic Extremist," Deutsch Welle, September 17, 2003.

[114] Peter Finn, "Europeans Tossing Terror Suspects Out the Door," Washington Post, January 29, 2002, page A1.

[115] Descriptions of the Austrian court decision are taken from the European Court of Human Rights decision  Bilasi-Ashri v. Austria, Application No. 3314/02, November 26, 2002, section A.5.

[116] Amnesty International, Concerns in Europe, July-December 2001 [online] http://web.amnesty.org/ai.nsf/Index/EUR010022002?OpenDocument&of=COUNTRIES\AUSTRIA (retrieved March 25, 2004).

[117] See Sibylle Kapferer, The Interface between Extradition and Asylum, UNHCR, op. cit., para. 29: "Where an extradition request concerns an asylum seeker, the requested State will not be in a position to establish whether extradition is lawful unless the question of refugee status is clarified. The determination of whether or not the person concerned has a well-founded fear of persecution must therefore precede the decision on extradition. This does not of itself require suspension of the extradition procedure. It does mean, however, that the decision of the extradition should only be made after the final determination on refugee status, even if extradition and asylum proceedings are conducted in parallel."

[118] Bilasi-Ashri v. Austria, section A.5.

[119] AI Index: Eur 13/001/2002, January 4, 2002 [online]

http://web.amnesty.org/library/Index/ENGEUR130012002?open&of=ENG-AUT (retrieved March 26, 2004).

[120] Bilasi-Ashri v. Austria, section A.5.

[121] Ibid.

[122] The Swedish Aliens Act-Utlänningslagen (1989)-grants the government powers to decide on the expulsion of foreign citizens who are considered a national security threat, including asylum seekers with pending claims, although it explicitly prohibits the execution of such decisions in cases where the returnee may risk torture or the death penalty. See also Sibylle Kapferer, The Interface between Extradition and Asylum, op. cit., footnote 117, regarding the relationship between asylum and extradition.

[123] In connection with its decision to expel al-Zari and Agiza, the Swedish government also decided to return Agiza's wife, Hanan Attia, and her five children. Following an individual communication on her behalf to the U.N. Committee against Torture, however, and the Committee's subsequent request that the Swedish government delay deportation until it has had an opportunity to examine the case, the deportation was put on hold and Attia and her children remained in Sweden, pending the Committee's decision on her case. The CAT decision was issued in November 2003 finding no violation of CAT article 3 (see section on CAT and Hanan Attia case above). Attia's lawyer subsequently submitted a new asylum application for Attia and her children, which is currently pending. They remain in Sweden at date of writing. See Human Rights Watch, "Call for Full and Fair Asylum Determination Procedure: Letter to Swedish Government on behalf of Hanan Attia" A Human Rights Watch Letter, December 17, 2003 [online] http://hrw.org/english/docs/2003/12/18/sweden6761.htm (retrieved March 26, 2004).

[124] Letters detailing the diplomatic assurances on file with Human Rights Watch.

[125] Submission of the Swedish government to the U.N. Human Rights Committee ("Information requested by the Human Rights Committee from the Government of Sweden"), May 6, 2003, on file with Human Rights Watch. In communications with Human Rights Watch, Swedish authorities have readily admitted that the decision to expel the men was a very difficult one, and explained that this was especially so because Sweden had never before expelled anyone based on diplomatic assurances.

[126] Sweden's failure to visit the men during the initial stages of their detention in Egypt is all the more disconcerting in light of reports that they were held incommunicado at an interrogation center of the State Security Intelligence Service outside Cairo during this time. They were subsequently transferred to the Mazraat Tora prison. As noted above, detainees are most vulnerable to torture and ill-treatment in the first days of detention.

[127] Submission of the Swedish government to the U.N. Human Rights Committee ("Information requested by the Human Rights Committee from the Government of Sweden"), May 6, 2003, on file with Human Rights Watch.

[128] Mohammed al-Zari was released in October 2003, thus visits with both men present ended at the time of his release.

[129] See U.N. Special Rapporteur on Torture, General Recommendations, E/CN.4/2003/68, para. (f) regarding prison monitoring and private visits [online] http://www.unhchr.ch/html/menu2/7/b/torture/recommendations.doc (retrieved on March 26, 2004).

See also, International Committee of the Red Cross, "How Visits by the ICRC can Help Prisoners Cope with the Effects of Traumatic Stress," Section on Private and Confidential Interviews with Prisoners, January 1, 1996 [online] http://www.icrc.org/web/eng/siteeng0.nsf/iwpList302/219CF73383F594D2C1256B660059956E (retrieved March 26, 2004).