•
International law prohibits a State from expelling, returning, extraditing or transferring
in any other way a person to a country where there are substantial grounds for
believing that he or she would be in danger of being subjected to torture. This is an
absolute prohibition, permitting of no exceptions. In addition to being an obligation
under customary law, this is also a requirement under article 3 of CAT and article 7 of
the ICCPR.
•
The same prohibition applies in the case of extraordinary renditions, referring to the
practice of transferring a person, with the involvement of the state or its agents, to
another state.
•
The relevant state for the purpose of determining where torture may occur is any state
to which the individual concerned is being expelled, returned, extradited or transferred,
as well as any state to which he or she may be subsequently expelled, returned or
extradited.
•
In order to constitute ‘substantial grounds’ as above, the risk of torture must be a
necessary and foreseeable consequence of deportation, but it need not be highly likely
to occur.
•
The level of the danger of being subjected to torture is considered at the time when the
decision-maker is deciding whether to expel, return, extradite or transfer a person.
•
The principle of non-refoulement may also apply where the danger of being subjected
to torture emanates from persons who are not public officials.
This has been
confirmed by judicial decisions (see for example Prosecutor v Kunarac, Kovac and
Vukic, Appeals Chamber of the ICTY).
•
Diplomatic assurances (or the equivalent) which are formal guarantees from a
Government of return or transfer that a person will not be subjected to torture upon
return or transfer will not be sufficient where the person is at a real risk of torture are
also prohibited because of the principle of non-refoulement (see for example the
decision of the Committee against Torture in Agiza v Sweden).
•
A diplomatic assurance may be legitimate where the government of the receiving
country provides an unequivocal guarantee that is meaningful and verifiable and a
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