The scope of the principle of ‘non-refoulement’

Non-refoulement of potential victims of torture Non-refoulement of potential victims of torture © Len Breen, Amnesty International

28 March, 2018

The UN Committee against Torture (the Committee) has issued new guidelines on the scope of the principle of ‘non-refoulement’.

The Committee’s decision to revise its General Comment n. 1 (1997) and to issue new guidelines on the scope of article 3 of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  was based on the consideration that most of the individual communications received under article 22 of the Convention refer to alleged violations by State parties of article 3 of the Convention. As a result, in its new General Comment No. 4 (2017), the Committee provides guidance on the implementation of article 3 and on the procedure to properly assess the admissibility and merits of individual communications.

Pursuant to article 3, paragraph 1 of the Convention, “[n]o State 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”. Paragraph 2 then provides that, in determining the existence of such grounds, the competent authorities shall take into account all relevant factors including, where applicable, “the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights”. These violations include, but are not limited to, widespread use of torture or cruel, inhuman or degrading treatment or punishment and impunity for its perpetrators; the existence of situations of international and non-international armed conflicts; harassment and violence against minority groups; credible allegations or evidence of genocide, crimes against humanity or war crimes; widespread gender-based violence; denial of fair trial guarantees; denial of the right to life, including death penalty and exposure to extrajudicial killings or enforced disappearance.

According to article 22 of the Convention, the Committee receives and considers communications from or on behalf of individuals claiming to be victims of a violation of the Convention. In such circumstances, article 22, paragraph 5 (b) specifies that the complainant must have “exhausted all available domestic remedies”. In the context of an alleged violation under article 3, this principle refers to all remedies that would preclude, in practice, the deportation of the person concerned to a country where he or she would personally be in danger of being subjected to torture.

With respect to the burden of proof, the Committee considers that in the absence of derogation, it is up to the complainant to provide substantive arguments for his or her case. However, once the communication has been submitted, it is the responsibility of the State party to assess, through administrative and/or judicial procedures, whether there are substantial grounds to believe that the person faces “foreseeable, present, personal and real risk of being subjected to torture in the State where he/she would be deported”. Indications of personal risks may include the complainant’s ethnic background, political or religious affiliation, gender identity, previous torture or incommunicado detention.

The Committee’s assessment will be primarily based on the information provided by, or on behalf of, the complainant and by the State party concerned. The Committee will also consult UN sources of information and any other sources deemed relevant and reliable. However, as also specified in the new guidelines, the Committee shall not be bound by any findings of fact and its decision shall be independent.

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