CAT/C/22/D/120/1998
page 5
It informed the Committee that, following its request under rule 108,
paragraph 9, the expulsion order against the author has been stayed while
his communication is pending consideration by the Committee.
A.
Observations on admissibility
4.3
As regards the domestic procedures, the State party submits that
although it considers that domestic remedies are still available to the author
it does not wish to contest the admissibility of the communication on the
ground of non-exhaustion of domestic remedies.
4.4
The State party contends that this communication is inadmissible
ratione materiae on the basis that the Convention is not applicable to the
facts alleged. In particular, the kind of acts the author fears that he will
be subjected to if he is returned to Somalia do not fall within the definition
of “torture” set out in article 1 of the Convention. Article 1 requires that
the act of torture be “committed by, or at the instigation of, or with the
consent or acquiescence of a public official or any other person acting in an
official capacity”. The author alleges that he will be subjected to torture
by members of armed Somali clans. These members, however, are not “public
officials” and do not act in an “official capacity”.
4.5
The Australian Government refers to the Committee's decision in
G.R.B. v. Sweden, in which the Committee stated that “a State party's
obligation under article 3 to refrain from forcibly returning a person to
another State where there were substantial grounds to believe that he or she
would be in danger of being subjected to torture was directly linked to the
definition of torture as found in article 1 of the Convention.” 2
4.6
The State party further submits that the definition of torture in
article 1 was the subject of lengthy debates during the negotiations for the
Convention. On the issue of which perpetrators the Convention should cover, a
number of views were expressed. For example, the delegation of France argued
that “the definition of the act of torture should be a definition of the
intrinsic nature of the act of torture itself, irrespective of the status of
the perpetrator”. 3 There was little support for the French view although
most States did agree that “the Convention should not only be applicable to
acts committed by public officials, but also to acts for which the public
authorities could otherwise be considered to have some responsibility.” 4
4.7
The delegation of the United Kingdom of Great Britain and Northern
Ireland made an alternative suggestion that the Convention refer to a “public
official or any other agent of the State”. 5 By contrast, the delegation of
the Federal Republic of Germany “felt that it should be made clear that the
term 'public official' referred not only to persons who, regardless of their
legal status, have been assigned public authority by State organs on a
permanent basis or in an individual case, but also to persons who, in certain
regions or under particular conditions actually hold and exercise authority
over others and whose authority is comparable to government authority or - be
it only temporarily - has replaced government authority or whose authority has
been derived from such persons.” 6