Advance unedited version

being subjected to torture in a State to which he or she is facing deportation, either as an
individual or a member of a group which may be at risk of being tortured in the State of
destination. The Committee’s practice has been to determine that “substantial grounds” exist
whenever the risk of torture is “foreseeable, personal, present and real”.6
12.
Any person found to be at risk of torture if deported to a given State should be allowed
to remain in the territory under the jurisdiction or control or authority of the State party
concerned so long as the risk persists.7 The person in question should not be detained without
proper legal justification and safeguards. Detention should always be an exceptional measure
based on an individual assessment8 and subject to regular review.9 Furthermore, the person
at risk should never be deported to another State where he/she may subsequently face
deportation to a third State in which there are substantial grounds for believing that he/she
would be in danger of being subjected to torture.10
13.
Each case should be individually, impartially and independently examined by the
State party through competent administrative and/or judicial authorities,11 in conformity with
essential procedural safeguards, notably the guarantee of a prompt and transparent process, a
review of the deportation decision and of a suspensive effect of the appeal.12 In each case, the
person concerned should be informed of the intended deportation in a timely manner.
Collective deportation,13 without an objective examination of the individual cases in regard
to personal risk, should be considered as a violation of the principle of “non-refoulement”.
14.
States parties should not adopt dissuasive measures or policies, such as detention in
poor conditions for indefinite periods, refusing to process claims for asylum or unduly
prolong them, or cutting funds for assistance programs to asylum seekers, which would
compel persons in need of protection under Article 3 of the Convention to return to their
country of origin in spite of their personal risk of being subjected there to torture and other
cruel, inhuman or degrading treatment or punishment.14

6

See e.g. communications No. 258/2004, Dadar v. Canada, decision adopted on 23 November 2005,
para. 8.4; No. 226/2003, T.A. v. Sweden, decision adopted on 6 May 2005, para. 7.2; No. 356/2008,
N.S. v. Switzerland, decision adopted on 6 May 2010, para. 7.3; and No. 614/2014, Subakaran R.
Thirugnanasampanthar v. Australia, decision adopted on 9 August 2017, para. 8.3.
7 See e.g. communication No. 34/1995, Aemei v. Switzerland, decision adopted on 29 May 1997, para.
11.
8 See e.g. Concluding observations on the fourth periodic report of Turkey (CAT/C/TUR/CO/4), para.
26.
9 See e.g. Concluding observations on the fifth periodic report of the United Kingdom of Great Britain
and Northern Ireland (CAT/C/GBR/CO/5), para. 30, and Concluding observations on the sixth and
seventh periodic reports of Sweden (CAT/C/SWE/CO/6-7), para.10
10 See e.g. General Comment No. 1 (1997): Implementation of Article 3 of the Convention in the context
of Article 22 (A/53/44, Annex IX), para. 2; communications no. 21/1997, Avedes Hamayak Korban v.
Sweden, decision adopted on 16 November 1998, para. 7; and no. 153/2000, Z.T. v. Australia,
decision adopted on 11 November 2003, para. 6.4; and Concluding observations on the fifth and sixth
periodic report of Greece (CAT/C/GRC/CO/5-6), para. 19, and Concluding observations on the
second periodic report of Serbia (CAT/C/SRB/CO/2), para. 15.
11 See e.g. Agiza v. Sweden, para. 13.8., supra fn. 3.
12 See e.g. Concluding observations on Greece (CAT/C/GRC/CO/5-6), para. 19 and Concluding
observations on the combined fifth and sixth periodic reports of Italy (CAT/C/ITA/CO/5-6), para. 21
c).
13 See e.g. communication No. 321/2007, Kwami Mopongo et al. v. Morocco, decision of 7 November
2014, paras. 6.2. - 6.3. and 11.3. -11.4.; and CCPR, General Comment No. 15: The position of aliens
under the Covenant, 11 April 1986, para. 10; and International Convention on the Rights of All Migrant
Workers and Members of Their Families, article 22, paragraph 1.
14 See e.g. Concluding observations on Greece (CAT/C/GRC/CO/5-6), para. 19.

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