I United Nations
| DOI | 10.1177/016934410502300205 |
| Published date | 01 June 2005 |
| Author | Ineke Boerefijn |
| Date | 01 June 2005 |
| Subject Matter | Part B: Human Rights News |
I UNITED NATIONS
INEKE BOEREFIJN
1. COMMITTEE AGAINST TORTURE, 33
RD
SESSION (CONTINUED)
During its 33
rd
session (November 2004) the Committee Against Torture adopted
five decisions on individual communications, four of which were reported on in the
previous issue of the NQHR.
1
The fifth decision was recently published. It is one of
the rare cases in which the Committee found that expulsion of an asylum seeker
would constitute a violation.
Activities under the Individual Complaints Procedure
Communication No. 133/1999, Enrique Falcon Rı
´os vs Canada, views of 24 November 2004
(violation of Article 3)
The complainant had been arrested and tortured by soldiers in connection with a
questioning on the whereabouts of his uncle, who had deserted from the Mexican
army. Other members of his family had also been tortured. Falcon Rı´os fled his
country and applied for asylum in Canada. His application was rejected on the
ground that his account was incredible. The complainant submitted that upon
return he would be arrested and tortured again and stated that Canada should
therefore not expel him.
The Canadian Government objected against admissibility on the ground that
domestic remedies had not been exhausted. In the Committee’s view, however, the
remedies were not effective. The Committee recalled its previously expressed
concerns about the possibility to request for a ministerial stay on humanitarian
grounds. Civil servants deciding on such appeals lacked independence; further-
more, persons could be expelled while an application for review was pending. It
further took into account that decisions were taken on humanitarian grounds rather
than on a legal basis. In the case of a judicial review, the court did not itself review
the case and take a decision. It returned the file to the organ that took the original
decision. According to the Committee, an appeal on humanitarian grounds was not
a remedy that needed to be exhausted to satisfy the requirements of Article 22(5)(b).
Canada had further submitted that Falcon Rı´os could have requested a review of the
risks of his return to Mexico. This remedy was also considered to be ineffective, as
only fresh evidence would be taken in consideration. The communication was
therefore declared admissible.
In examining the merits, the Committee first referred to the situation on human
rights in general and torture in particular, referring to its own report on its visit to
Mexico (2001). It concluded that despite the Government’s efforts to eliminate
torture, there were still many reports of torture. Subsequently, it examined whether
PART B: HUMAN RIGHTS NEWS
Netherlands Quarterly of Human Rights, Vol. 23/2, 273-302, 2005.
#Netherlands Institute of Human Rights (SIM), Printed in the Netherlands. 273
1
Netherlands Quarterly of Human Rights, Vol. 23, No. 1, 2005, pp. 105-108.
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