Advance unedited version
15.
Article 16 of the Convention provides for the duty of States parties to prevent acts of
cruel, inhuman or degrading treatment or punishment (ill-treatment), which do not amount to
torture as defined in Article 1 of the Convention. 15
16.
States parties should consider whether other forms of ill-treatment that a person facing
deportation is at risk of experiencing could likely change so as to constitute torture before
making an assessment on each case relating to the principle of “non-refoulement”.16
17.
The Committee considers that severe pain or suffering cannot always be objectively
assessed. It depends on the negative physical and/or mental repercussions that the infliction
of violent or abusive acts has on each individual, taking into account all relevant
circumstances of each case, including the nature of the treatment, the sex, age and state of
health and vulnerability of the victim or any other status or factors.17
III. Preventive measures to guarantee the principle of “non
refoulement”
18.
For the purpose of fully implementing Article 3 of the Convention, States parties
should take legislative, administrative, judicial and other preventive measures against
possible violations of the principle of “non-refoulement”, including:
(a)
Ensuring the right of each person concerned to have his/her case examined
individually and not collectively, to be fully informed of the reasons why he/she is the subject
of a procedure which may lead to a decision of deportation, and of the rights legally available
to appeal such decision; 18
(b)
Providing access of the person concerned to a lawyer,19 to free legal aid when
necessary, and access to representatives of relevant international organizations of
protection20;
(c)
The development of an administrative or judicial procedure concerning the
person in question in a language that he/she understands, or with the assistance of interpreters
and translators; 21
(d)
The referral of the person alleging previous torture to an independent medical
examination free of charge, in accordance with the Manual on the Effective Investigation and
15
See General Comment No. 2 (2008): Implementation of article 2 by States parties (CAT/C/GC/2),
paras. 3 and 6.
16 Other international provisions directly relevant to the application of the principle of non-refoulement
in cases of a risk of ill-treatment are listed in paragraph 28 below.
17 See General Comment No. 2 (2008): Implementation of article 2 by States parties (CAT/C/GC/2),
para. 21.
18 See e.g. Concluding observations on the combined fifth and sixth periodic reports of Italy
(CAT/C/ITA/CO/5-6), para. 21; Concluding observations on the seventh periodic report of Finland
(CAT/C/FIN/CO/7), para. 13; Concluding observations on the seventh periodic report of Switzerland
(CAT/C/CHE/CO/7), para. 14; Concluding observations on the third periodic report of Belgium
(CAT/C/BE/CO/3), para. 22.
19 See e.g. Concluding observations on the seventh periodic report of Finland (CAT/C/FIN/CO/7), para.
13.
20 See e.g. Concluding observations on the second periodic report of Serbia (CAT/C/SRB/CO/2), para.
15. See also Kwami Mopongo et al. v. Morocco, paras. 11.3. -11.4, supra fn. 13.
21 See e.g. Concluding observations on the combined third to fifth periodic reports of Latvia
(CAT/C/LVA/CO/3-5), para. 17.
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