CAT/C/21/D/67/1997
page 4
2.7
Counsel further draws the attention of the Committee to the fact that on
at least two occasions, 30 November 1995 and 8 December 1995, Mr. Akhimien had
written to the Canadian immigration authorities to withdraw his application
for refugee status and requested to be released from detention.
The complaint
3.1
Counsel claims that the treatment to which Mr. Akhimien was subjected
while in detention constitutes cruel, inhuman or degrading treatment and that
the State party has acted in violation of article 16 of the Convention. It is
argued that Mr. Akhimien's death was preventable, that the acts and omissions
of the employees of the immigration detention centre were the cause of his
death and that the Government of Canada has the final responsibility for the
management of detention centres and therefore bears responsibility for the
death of Mr. Akhimien.
3.2
It is further stated that the conditions and rules prevailing in
Canadian immigration detention centres do not comply with the standards
established by the Convention, in particular by articles 10 and 11.
3.3
Finally, counsel claims that the failure of the State party to ensure a
prompt and impartial investigation of allegations of torture in connection
with the death of Mr. Akhimien, as well as the failure to ensure that the
family of the deceased received adequate compensation, constitute violations
of articles 12, 13 and 14 of the Convention.
State party's observations
4.1
The State party recalls that pursuant to rule 107 of the rules of
procedure of the Committee, the author of the communication must justify his
acting on the victim's behalf. It maintains that it is unclear from the
submission who the counsel represents or whether counsel has a mandate from
Mr. Akhimien's family and dependants. The State party submits that the
Committee cannot examine this communication before counsel produces a document
indicating the persons who mandated him to act on their behalf.
4.2
The State party submits that the communication be considered
inadmissible given that the authors have not exhausted all effective,
available domestic remedies as prescribed in article 22, paragraph 5 (b), of
the Convention. The State party recalls that in the present case a coroner's
inquest was conducted into the death of Mr. Akhimien, pursuant to the
Coroner's Act of Ontario. It is further recalled that the authors of the
communication allege that the coroner's inquest was not conducted impartially
and objectively and that the rules of evidence were not respected during the
process. The State party submits that if any error was committed during the
inquest, as alleged by the authors of the communication, a domestic remedy
exists, in the form of a judicial review by a Canadian court. The State party
further submits that on 5 June 1996 the Nigerian Canadian Association filed an
application for judicial review before the Ontario Divisional Court, seeking
to quash certain rulings made by the coroner during the inquest or,
alternatively, to quash the entire inquest proceedings. At the time of the
State party's submission, the application for judicial review was still
pending. The State party submits that domestic remedies have not been