CAT/C/19/D/57/1996
page 4
State party's observations
4.
On 4 November 1996, the Committee, through its Special Rapporteur,
transmitted the communication to the State party for comments and requested it
not to expel the author while his communication was under consideration by the
Committee.
5.1
By a note dated 14 March 1997, the State party challenges the
admissibility of the communication but also addresses the merits of the case.
It requests the Committee, should it not find the communication inadmissible,
to examine the communication on its merits as soon as possible. It states
that the author has not been expelled.
5.2
The State party notes that the communication dwells at length on the
disturbing human rights situation in China but does not demonstrate any link
between the author's personal situation and the general situation in that
country. It recalls that the Committee's case law has established that a
disturbing situation of human rights in a country does not in itself
constitute sufficient grounds for believing that the author of the
communication would be personally at risk of being subjected to torture.
5.3
The State party emphasizes that neither in his communication to the
Committee against Torture nor in his submissions to the Canadian authorities
has the author claimed to have been tortured, arrested, imprisoned or
subjected to ill-treatment in China. He does not claim either to have
participated in political activities or to be known to or sought by the
Chinese authorities.
5.4
The State party notes that the author says he is afraid that, if he is
returned to China, he will be arrested and sentenced to life imprisonment or
to death, or that he will be given a disproportionate sentence or subjected to
inhuman treatment under article 7 of the Chinese Criminal Code, which deals
with the punishment of crimes committed outside China's territory. First of
all, the State party notes that protection under article 3 of the Convention
is not explicitly provided in cases of cruel, inhuman or degrading treatment,
defined by article 16 of the Convention. According to the State party,
therefore, article 3 applies only to the most serious forms of cruel, inhuman
or degrading treatment, in other words, situations which threaten human
dignity. The State party also recalls that the Convention excludes from the
definition of torture “pain or suffering arising only from, inherent in or
incidental to lawful sanctions”. Therefore, imprisonment and the normal
conditions of detention do not as such constitute torture as defined by the
Convention and interpreted by the Committee. Furthermore, the State party
explains that information obtained from the Canadian Embassy in China suggests
that the Chinese authorities will not retry a person for offences such as
those committed by the author in Canada. In any case, the State party notes
that article 7 of the Chinese Criminal Code stipulates that the penalty will
be either suspended or mitigated if the person in question has already been
punished in the country where the criminal act was committed. Since the
author has been punished in Canada for his offences, punishment in China
(if any) would be mitigated. Moreover, according to article 150 of the
Chinese Criminal Code, theft accompanied by threats, the use of force or
similar measures is punishable by 3 to 10 years' imprisonment. According to