Gaps in international protection and the potential for redress through individual complaints procedures

International Journal of Refugee Law

Volumn 9, Issue 3, 1997, Pages 392-413

  Andrysek, Oldrigh ^a,b  

^a Intl Fed Red Cross Red Cres S   (Croatia)

^b UNHCR's Regional Office   (Austria)

Author keywords

[No Author keywords available]

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EID: 0000662819     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/9.3.392     Document Type: Article

References (80)

1. The principle of non-refoulement ('... not to expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened ...') is established in art. 33(1) of the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto (1951 Convention). In force 22 Apr. 1954: 189 UNTS No. 2545; for the 1967 Protocol, see 606 UNTS No. 8791. At 1 Jan. 1997, 135 States were party to the 1951 Convention and/or the Protocol.
2. In cases which may fall outside the scope of the 1951 Convention UNHCR may have a protection role conferred upon it by its Statute (mandate), ECOSOC or General Assembly (GA) resolutions. See also G.S. Goodwill-Gill, The Refugee in International Law (2nd ed., 1996), 117ff. For opposing views see K. Hailbronner/A. Randelzhofer, 'Zur Zeichnung der UN-Folterkonvention durch die Bundesrepublik Deutschland', EuGRZ (1986), 644.
3. In cases which may fall outside the scope of the 1951 Convention UNHCR may have a protection role conferred upon it by its Statute (mandate), ECOSOC or General Assembly (GA) resolutions. See also G.S. Goodwill-Gill, The Refugee in International Law (2nd ed., 1996), 117ff. For opposing views see K. Hailbronner/A. Randelzhofer, 'Zur Zeichnung der UN-Folterkonvention durch die Bundesrepublik Deutschland', EuGRZ (1986), 644.
4. Although closely related and in many regards also relevant, the rights emanating from provisions designed to guarantee the rights to due process, protection against unlawful detention, invasions of privacy and family life fall outside the scope of the present study.
5. At 1 Jan. 1997 the number of State Parties was 34; in force 3 Sept. 1953: 213 UNTS No. 2889.
6. The Universal Declaration of Human Rights (UDHR48), the two International Covenants (on Civil and Political Rights and Economic, Social and Cultural Rights (ICCPR66 and ICESCR66) and the Optional Protocols. See also UN Charter (notably the Preamble and art. 1), International Convention on the Elimination of All Forms of Racial Discrimination (CERDG5),Convention on the Elimination of All Forms of Discrimination against Women (CEDW79), Convention on the Rights of the Child (CRC1989) and the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) which is still to enter into force. For texts, see A Compilation of International Instruments, United Nations (1994), ST/HR1/Rev. 5.
7. For more see 'An overview of Protection Issues in Western Europe: Legislative Trends and Positions taken by UNHCR' (Aug. 1995). Compare also with the US Supreme Court decision on the interdiction of Haitians in international waters in Sale v. Haitian Centres Council, Ref. 61 U.S.L.W. 4864 (28 June 1993) and Goodwin-Gill, G.S., 'The Haitian Refoulement case: A Comment', 6 IJRL 103 (1994); also available on www.unhcr.ch/refworld (ref. CAS/USA/116) and the German Constitutional Court Decision on safe third country, safe country of origin and airport practices, (ref. 2BvR 1938/93 and 2BvR 2315/93, 14 May 1996).
8. For more see 'An overview of Protection Issues in Western Europe: Legislative Trends and Positions taken by UNHCR' (Aug. 1995). Compare also with the US Supreme Court decision on the interdiction of Haitians in international waters in Sale v. Haitian Centres Council, Ref. 61 U.S.L.W. 4864 (28 June 1993) and Goodwin-Gill, G.S., 'The Haitian Refoulement case: A Comment', 6 IJRL 103 (1994); also available on www.unhcr.ch/refworld (ref. CAS/USA/116) and the German Constitutional Court Decision on safe third country, safe country of origin and airport practices, (ref. 2BvR 1938/93 and 2BvR 2315/93, 14 May 1996).
9. For more see 'An overview of Protection Issues in Western Europe: Legislative Trends and Positions taken by UNHCR' (Aug. 1995). Compare also with the US Supreme Court decision on the interdiction of Haitians in international waters in Sale v. Haitian Centres Council, Ref. 61 U.S.L.W. 4864 (28 June 1993) and Goodwin-Gill, G.S., 'The Haitian Refoulement case: A Comment', 6 IJRL 103 (1994); also available on www.unhcr.ch/refworld (ref. CAS/USA/116) and the German Constitutional Court Decision on safe third country, safe country of origin and airport practices, (ref. 2BvR 1938/93 and 2BvR 2315/93, 14 May 1996).
10. The 15 EU Member States seek to enhance their coordination through the Dublin Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community (not yet in force) which sets out rules for determining the Member State for examining asylum applications lodged in one of the Member States (signed on 15 June 1990); for text see 2 IJRL 469 (1990). For the EU Commission's views on immigration and asylum policies see its 1994 Communication, COM (94) 23 final. See also J. Handoll, Free movement of persons in the EU, Partner, Paisner & Co. (1995). Another relevant instrument is the 14 June 1985 Agreement on the Gradual Abolition of Controls at the Common Frontiers and the socalled Schengen Implementation Agreement (19 June 1990, entered into force on 26 March 1995); for extracts, see 3 IJRL 773 (1991).
11. The 15 EU Member States seek to enhance their coordination through the Dublin Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community (not yet in force) which sets out rules for determining the Member State for examining asylum applications lodged in one of the Member States (signed on 15 June 1990); for text see 2 IJRL 469 (1990). For the EU Commission's views on immigration and asylum policies see its 1994 Communication, COM (94) 23 final. See also J. Handoll, Free movement of persons in the EU, Partner, Paisner & Co. (1995). Another relevant instrument is the 14 June 1985 Agreement on the Gradual Abolition of Controls at the Common Frontiers and the socalled Schengen Implementation Agreement (19 June 1990, entered into force on 26 March 1995); for extracts, see 3 IJRL 773 (1991).
12. The 15 EU Member States seek to enhance their coordination through the Dublin Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Community (not yet in force) which sets out rules for determining the Member State for examining asylum applications lodged in one of the Member States (signed on 15 June 1990); for text see 2 IJRL 469 (1990). For the EU Commission's views on immigration and asylum policies see its 1994 Communication, COM (94) 23 final. See also J. Handoll, Free movement of persons in the EU, Partner, Paisner & Co. (1995). Another relevant instrument is the 14 June 1985 Agreement on the Gradual Abolition of Controls at the Common Frontiers and the socalled Schengen Implementation Agreement (19 June 1990, entered into force on 26 March 1995); for extracts, see 3 IJRL 773 (1991).
13. See UNHCR, 'Note on International Protection': UN doc. A/AC.96/830 (1994), para. 21 (text also in 6 IJRL 679 (1994); or UNHCR, 'Considerations on the safe third country concept', EU Seminar on the Associated States as Safe Third Countries in Asylum Legislation, Vienna, 8-11 July 1996.
14. See UNHCR, 'Note on International Protection': UN doc. A/AC.96/830 (1994), para. 21 (text also in 6 IJRL 679 (1994); or UNHCR, 'Considerations on the safe third country concept', EU Seminar on the Associated States as Safe Third Countries in Asylum Legislation, Vienna, 8-11 July 1996.
15. See UNHCR, 'Note on International Protection': UN doc. A/AC.96/830 (1994), para. 21 (text also in 6 IJRL 679 (1994); or UNHCR, 'Considerations on the safe third country concept', EU Seminar on the Associated States as Safe Third Countries in Asylum Legislation, Vienna, 8-11 July 1996.
16. See G.S. Goodwin-Gill, 'Refugee Identity and the Fading Prospect of International Protection', Conference of Refugee Rights and Realities, University of Nottingham, 30 Nov. 1996.
17. See, for example, 'Europe: The need for minimum standards in asylum procedure', Amnesty International (Jun. 1994); 'Foreign Policy for Refugees and Migration: Efforts Within Europe Concerning Migration', ECRE, Bern (6 Nov. 1996).
18. See, for example, 'Europe: The need for minimum standards in asylum procedure', Amnesty International (Jun. 1994); 'Foreign Policy for Refugees and Migration: Efforts Within Europe Concerning Migration', ECRE, Bern (6 Nov. 1996).
19. See also Cassese, A., 'The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)', in Cassese, A., ed., The International Fight Against Torture, Europäisches Hochschulinstitut, Florenz (1991), 136. The socialist doctrine, which regarded human rights, as an internal matter of the individual State had been abandoned in 1989 with the CSCE Vienna Concluding Document. Subsequently, human rights, the rule of law and democracy became the corner-stones of the 1990 Copenhagen Document on the Human Dimension of the CSCE and in 1991 the Moscow Document on the Human Dimension of the CSCE explicitly stipulated that the observance of human rights and humanitarian law is no longer an internal matter of the individual State, but falls within the responsibility of all Member States.
20. See UNHCR, The State of the World's Refugees, Penguin (1993), 39 and Ian Martin's Foreword in Danièle Joly, Refugees: Asylum in Europe?, vii (1992).
21. See UNHCR, The State of the World's Refugees, Penguin (1993), 39 and Ian Martin's Foreword in Danièle Joly, Refugees: Asylum in Europe?, vii (1992).
22. For the perspectives of cooperation between the Strasbourg organs and the Office of UNHCR, see 'The European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons', European Series, Vol. 2, No. 3 (July 1996). For a less optimistic view of refugee protection under ECHR50, see Goodwin-Gill, G.S., The Refugee in International Law, (2nd ed., 1996), 315-22; however, this predates the decision of the European Court in Chahal.
23. For the perspectives of cooperation between the Strasbourg organs and the Office of UNHCR, see 'The European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons', European Series, Vol. 2, No. 3 (July 1996). For a less optimistic view of refugee protection under ECHR50, see Goodwin-Gill, G.S., The Refugee in International Law, (2nd ed., 1996), 315-22; however, this predates the decision of the European Court in Chahal.
24. See Ahmed v. Austria Judgment 71/1995/577/663, 17 Dec. 1996, para. 41; 9 IJRL 279 (1997).
25. Soering v. United Kingdom, Judgment of 7 July 1989, Series A, Number 161, para. 111 (emphasis supplied). Art. 3 ECHR50 provides: 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. The European Court considered exposing a fugitive to the 'death row phenomenon' to constitute treatment capable of raising issues under art. 3 ECHR50. For an opposing opinion ('... prolonged detention on death row does nor per se constitute a violation of articles 7 and 10 ...'), see Views of the Human Rights Committee, Errol Johnson v. Jamaica (No. 588/1994) para. 8.5, UN doc. CCPR/C/56/D/588/1994, 5 Aug. 1996.
26. For detailed discussion, see P. van Dijk, 'Article 3 and Asylum Law and Policy in the Netherlands', in 'The Dynamics of the Protection of Human Rights in Europe', Essays in Honor of Henry G. Schermers (ed. R. Lawson & M. de Blois, Martinus Nijhof (1994), 123-53. Art. 3 CAT84 prohibits a State Party from expelling, returning (refouler) or extraditing a person to another State where there are substantial grounds for believing that he or she would be subjected to torture. See A Compilation, above.
27. See X. v. the Netherlands, Application No. 10633/83, Decision of 5 Mar. 1984.
28. See Soering v. United Kingdom, Report of 19 Jan. 1989 (Application No. 14038/88), para. 94, later upheld in the Soering Judgment (above, para. 88).
29. See Joy Aylor-Davis v. France, Application No. 22742/93, Admissibility Decision of 20 Jan. 1994.
30. Quotations are from Amuur v. France, 17/1995/523/609, para. 48 of 25 June 1996: Case abstract in 9 IJRL 122 (1997), and Chahal v. The United Kingdom, 70/1995/576/662, para. 105 of 15 Nov. 1996: 9 IJRL. 86 (1997), respectively.
31. See Mutombo v. Switzerland (No. 13/1993), UN doc. CAT/C/12/D/13/1993: 7 IJRL 322 (1995); Khan v. Canada (No. 15/1994), UN doc. CAT/C/13/D/15/1994; Pauline Muzonzo Paku Kisoki v. Sweden (No. 41/1996), UN doc. CAT/C/16/D/41/1996: 8 IJRL 651 (1996); Ismail Alan v. Switzerland (No. 21/1995), UN doc. CAT/C/16/D/21/1995: 8 IJRL. 440 (1996); and Kavegh Taragh Tala v. Sweden (No. 43/1996), UN doc. CAT/C/17/D/43/1996; see also Amuur, Chahal and Ahmed, above.
32. See Decision of the Commission, 27 Jun. 1996 (Application No. 22414/93), para. 98.
33. See Chahal v. UK, para. 78.
34. See European Union Council's Joint Position on the harmonized application of the definition of the term 'refugee' in Article 1 of the 1951 Convention, para. 5.1, OJ 4464/1/95, 4 Mar. 1996.
35. See Ahmed v. Austria, paras. 41, 44 respectively.
36. Sec Amuur v. France, paras. 48, 52 respectively, above.
37. Ibid., paras. 43, 50.
38. In force 23 Mar. 1976. At 1 Jan. 1997 the number of States Parties was 89. The Second Optional Protocol aiming at the abolition of the death penalty had 29 States Parties. See A Compilation, above; also A. De Zayas, J. Möller, T. Opsahl, 'Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee', Centre for Human Rights, Reprint Series No. 1; 28 German T'bk.I.L. 9 (1987).
39. In force 23 Mar. 1976. At 1 Jan. 1997 the number of States Parties was 89. The Second Optional Protocol aiming at the abolition of the death penalty had 29 States Parties. See A Compilation, above; also A. De Zayas, J. Möller, T. Opsahl, 'Application of the International Covenant on Civil and Political Rights under the Optional Protocol by the Human Rights Committee', Centre for Human Rights, Reprint Series No. 1; 28 German T'bk.I.L. 9 (1987).
40. Adopted by UNGA res. 2200 A (XXI), 16 Dec. 1966, in force 23 Mar. 1976. At 1 Jan. 1997 the number of States Parties was 135. See A Compilation, above.
41. Adopted by UNGA res. 39/46, 10 Dec. 1984, in force 26 Jun. 1987. At 1 Jan. 1997 the number of State Parties was 100; Suntinger, W., 'The principle of non-refoulement. Looking rather to Geneva than to Strasbourg?' 49 Austrian J.P.I.L. 203 (1995).
42. That is, the First Optional Protocol to the Covenant, art. 22 CAT84 and art. 14 CERD65 (the latter is not examined here).
43. See, for example, art. 21(1)(e) CAT84 or art. 30 ECHR50; the First Optional Protocol contains no express provision for a friendly settlement.
44. While this article only touches upon the procedure under the Covenant First Optional Protocol and ECHR50, it focuses on the less known jurisprudence pertaining to the rights of asylum seekers and refugees under CAT84 (persons who are protected by the rule of non-refoulement).
45. Communications should be addressed to the respective Committee in care of the Centre for Human Rights, United Nations Office in Geneva, which can also be requested to forward model communications and guidelines.
46. See, for example, 'The Universal Declaration of Human Rights: its Significance in 1988', SIM Special No. 9 (1989).
47. The legality of expulsions has been examined in a number of cases submitted to the Human Rights Committee (HRC). See Views in Maroufidou v. Sweden (No. 58/1979), Selected Decisions of the Human Rights Committee, Vol. 1, UN doc. ICCPR/C/CP/1, 80; also Hammel v. Madagascar (No. 155/ 1983) and M.F. v. The Netherlands (No. 173/1984) in Selected Decisions of the Human Rights Committee, Vol. 2, UN doc. ICCPR/C/CP/2, 11, 179, 51. The following Views can be consulted in the respective annual reports of the GA (UN docs. Supp. 40 A/xx/40): J.R.C. v. Costa Rica (No. 296/1988), Torres v. Finland (No. 310/1988), or V.M.R.B. v. Canada (No. 236/1987) and Pierre Giry v. Dominican Republic (No. 193/1985). Views are awaited in S. v. Canada (No. 538/1993), L. v. Canada (No. 621/1995), C. v. Canada (No. 558/1993) and D. v. Canada (No. 622/1995). See also Delgado Poez v. Columbia (No. 195/1985) which dealt with a complaint of a refugee who fled to France and alleged a violation of liberty and security of person under art. 9. Views in a detention case, A v. Australia, are published below at pp. 502-26.
48. General comments are the Committee's interpretative statements of provisions of the Covenant and are issued pursuant to art. 40, para. 4 of the Covenant. Para. 5 of General Comment no. 15 adopted by the 27th session in 1986 (on the position of Aliens under the Covenant) states: 'The Covenant does not recognize the right of aliens to enter or reside in the territory of a State party [...] however, in certain circumstances an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise'. See also General Comment No. 18 on Discrimination (37th sess., 1989): UN doc. HRI/GEN/1/Rev.2 (29 Mar. 1996).
49. By its 58th Session (21 Oct.-8 Nov. 1996), the HRC had issued 244 Views, 228 inadmissibility decisions and 115 cases were discontinued. At present there are 141 active cases. With regard to new signatories from Central and Eastern Europe violations have been found in Simunek v. Czech Republic (No. 516/1991), Adam v. Czech Republic (No. 586/1994), Parkanyi v. Hungary (No. 410/1990) and Kulomin v. Hungary (No. 521/1992). No violation was found in Somers v. Hungary (No. 566/1993). Cases pending include C. v. Russia (No. 637/1995), K. v. Poland (No. 552/1993), and D. v. Slovakia (No. 643/1995). Inadmissible decisions have been rendered in P.T. v. Hungary (No. 496/1992) and E. and A.K. v. Hungary (No. 520/1992); for texts, see the respective annual GA reports in UN docs. (Supp. 40 A/xx/40).
50. The HRC, under rule 86, requested Canada that MM. Joseph Kindler and Chinat Ng (Communication Nos. 470/1991 and 469/199: UN docs. CCPR/48/D/470/1991 and CCPR/49/ D/469/1991 respectively) not be extradited to the USA to face criminal proceedings that could end with the imposition of capital punishment. Following a decision of the Canadian Supreme Court, both were extradited in disregard of the Rule 86 request. The European bodies can resort to similar procedures established pursuant to Rule 36 of the Commission Rule of Procedure and Rule 38(2) of the Rules of Court B. Both are non-binding but some States have enacted legislation which precludes the authorities from executing decisions while they are in force (for example, Austrian Federal Aliens Act, art. 37(6), BGBl. 286/1992).
51. The HRG examines reports in public sessions with a view to scrutinizing measures a State has adopted in order to give effect to the rights enumerated in the Covenant. The 58th session examined reports of Denmark, Gabon, Germany, Switzerland, the UK (Hong Kong) and Peru. The Committee Against Torture presents the same opportunities; see below.
52. The first Rapporteur's mandate was spelled out in Annex XI of the HRC's 1990 report to the UN General Assembly: GAOR, Supp. 40 (A/45/40, Vol. I, Annex VI). J. Fodor, the first Rapporteur, was succeeded by A. Mavrommatis in March 1993. During its fifty-first session the HRC adopted a new rule of procedure, Rule 95, which refers to the mandate of the Special Rapporteur. See Human Rights Committee 1994 Report, GAOR, Supp. 40 (A/49/40). A. De Zayas, 'The Follow-up procedure of the United Nations Human Rights Committee', ICJ Review, No. 47, 28-36 (1991).
53. The first Rapporteur's mandate was spelled out in Annex XI of the HRC's 1990 report to the UN General Assembly: GAOR, Supp. 40 (A/45/40, Vol. I, Annex VI). J. Fodor, the first Rapporteur, was succeeded by A. Mavrommatis in March 1993. During its fifty-first session the HRC adopted a new rule of procedure, Rule 95, which refers to the mandate of the Special Rapporteur. See Human Rights Committee 1994 Report, GAOR, Supp. 40 (A/49/40). A. De Zayas, 'The Follow-up procedure of the United Nations Human Rights Committee', ICJ Review, No. 47, 28-36 (1991).
54. Between the forty-first and the fiftieth sessions, the HRC considered follow-up information on a confidential basis. Upon reflection it acknowledged that publicity for follow-up activities would not only be in the interest of the victims, but could also serve to enhance the authority of the Views and provide an incentive for States parties to implement them. During its forty-seventh session in March-April 1993, the HRC agreed in principle that information on follow-up activities should be made public.
55. See J.H. Burgers and H. Danelius, The United Nations Convention against Torture, Kluwer (1988), 1, 12; also Report of the UN Special Rapporteur on Torture: UN doc. E/CN.4/1991/17, para. 278. 1969 Vienna Convention on the Law of Treaties: UN doc. A/CONF./39/27, 23 May 1969.
56. See UNGA res. 3452 (XXX), GAOR, 30th Session, Supp. 34., p. 91 and the Commission's report of 5 Nov. 1969: Yearbook of the European Commission on Human Rights, 12, 186. The distinction between torture and inhuman and degrading treatment and the actual threshold which needs to be attained were examined by the European Commission and the Court in the Northern Ireland case. The five interrogation techniques used by British security forces (hooding, constant noise, deprivation of sleep, food and drink and standing for long times on one's toes) '... did not constitute a practice of torture since they did not occasion suffering of particular intensity and cruelty implied in the word torture'. The European Court's interpretation thus reversed a unanimous finding of the Commission, which had already been accepted by the Government, and set the threshold rather higher. See Ireland a United Kingdom, Judgment of 18 Jan. 1978, Series A25 (1978), para. 167.
57. See UNGA res. 3452 (XXX), GAOR, 30th Session, Supp. 34., p. 91 and the Commission's report of 5 Nov. 1969: Yearbook of the European Commission on Human Rights, 12, 186. The distinction between torture and inhuman and degrading treatment and the actual threshold which needs to be attained were examined by the European Commission and the Court in the Northern Ireland case. The five interrogation techniques used by British security forces (hooding, constant noise, deprivation of sleep, food and drink and standing for long times on one's toes) '... did not constitute a practice of torture since they did not occasion suffering of particular intensity and cruelty implied in the word torture'. The European Court's interpretation thus reversed a unanimous finding of the Commission, which had already been accepted by the Government, and set the threshold rather higher. See Ireland a United Kingdom, Judgment of 18 Jan. 1978, Series A25 (1978), para. 167.
58. Several CAT84 articles are optional: art. 20 (inquiry procedure)-90 States; the procedure is optional and confidential; the Committee Against Torture is empowered to receive information and to institute inquiries concerning allegations of systematic practice of torture; one member designated to make confidential inquiry; summary of account may be included in annual report; art. 21 (inter-State complaints)-39 States; no inter-State complaints to date; art. 22 (individual complaints)-37 States.
59. For last report see UN Doc. A 51/44.
60. The 17th Session of the CAT (11-22 Nov. 1996) examined reports from Algeria, Republic of Korea, Russia, Uruguay, Georgia, Ukraine, Poland and Mexico. By 1 June 1995 some 58 initial and 25 periodic reports had been reviewed.
61. See debate on Cameroon and Norway in UN docs. A/47/44 para. 255 and A/48/4, para. 68, respectively.
62. Pursuant to CAT84 and the Rules of Procedure the Committee proceeds to examine the merits while respecting the principle of subsidiarity (throughout the procedure an attempt is made to achieve a friendly settlement).
63. A request pursuant to Rule 108(9) of the Rules of Procedure to a State Party does not prejudge the case on merits and from a legal point of view is non-binding. The Secretariat examines a communication and makes a recommendation to the Rapporteur whether to issue a decision. In practice it is often invoked in expulsion cases.
64. The issue of closer cooperation with UNHCR has for similar reasons also been considered at some length by Council of Europe bodies; although UNHCR has recently posted a liaison Officer in Strasbourg, it appears that neither side has hitherto been prepared to pursue the issue in more concrete terms.
65. For guidance on the concept of the benefit of the doubt and on how to examine claims from persons fearing persecution and assess their credibility, coherency and plausibility, see G.S. Goodwin-Gill, The Refugee in International Law (2nd ed., 1996), 349-56; also, UNHCR, Handbook on Procedures and Criteria for the Determination of Refugee Status, Geneva (1979), paras. 196, 203-4.
66. For guidance on the concept of the benefit of the doubt and on how to examine claims from persons fearing persecution and assess their credibility, coherency and plausibility, see G.S. Goodwin-Gill, The Refugee in International Law (2nd ed., 1996), 349-56; also, UNHCR, Handbook on Procedures and Criteria for the Determination of Refugee Status, Geneva (1979), paras. 196, 203-4.
67. Cf. Goodwin-Gill, The Refugee in International Law, 153-5. The Committee is expected to issue a 'general comment' on art. 3, explaining its approach when determining whether a person is in danger of being tortured and therefore should not be extradited.
68. 54 In the case of Kisoki v. Sweden the Committee requested the State Party to refrain from deportation on two separate occasions. While the author's first Communication (No. 30/1995) was eventually ruled inadmissible on the grounds of non-exhaustion of domestic remedies, the second application resulted in Views favourable to the author (Communication No. 41/1996). A stay of expulsion was also granted in Tala v. Sweden.
69. See, for example, para. 11.4 of Alan, above note 20.
70. Ibid., para. 11.3; also para. 9.3 of Kisoki and para. 10.3 of Tala, above note 20.
71. See, for example, para. 7.5 of Mutambo, para. 3.4 of Khan, para. 2.4 of Alan or para. 3.3 of Kisoki and para. 10.3 of Tala, above note 20.
72. See, for example, para. 11.5 of Alan, above note 20, which reads: 'the Committee regretfully notes ... that the practice of torture is still systematic in Turkey, as attested to in the Committee's findings in its inquiry under Article 20 of the Convention'.
73. See the most recent report of the Special Rapporteur on Torture (Nigel Rodley): UN doc. E/ CN.4/1996/35; also the report of the Special Rapporteur on Zaire (Roberto Garretón): UN doc. E/CN.4/1995/67.
74. See, for example, para. 9.5 of Kisoki, above note 20.
75. Art. 3(2) CAT84 employs language first formulated in ECOSOC resolutions 1235(XLII) and 1503 (XLVIII) adopted in 1967 and 1970 respectively. The latter resolution established a confidential procedure whereby the UN human rights organs can deal with communications 'which appear to reveal a consistent pattern of gross and reliably attested violations of human rights'. See P. Alston, 'The Commission on Human Rights' in P. Alston (ed.), The United Nations and Human Rights, Oxford (1992).
76. For relevant CAT inadmissibility decisions see X, v. Switzerland (Zairian) No. 17/1994 (lack of substantiation), X. v. Switzerland (Zairian) No. 18/1994, X. v. Netherlands (Zairian) No. 36/1995, Mr. X. and Mrs. Y. v. The Netherlands (Georgians) No. 31/1995 (all inadmissible due to lack of substantiation), M.A. v. Canada (Iranian) No. 22/1995, A.E. v. Switzerland (Nigerian) No. 24/1995, K.K.H. v. Canada (Ghanaian) No. 35/1995, N.D. v. France (Zairian) No. 32 1995 and P.M.P.K v. Sweden (Zairian) No. 30/1995 (all non-exhaustion of domestic remedies), X. v. Canada (Zairian) No. 26/1995 (submitted also to the Inter-American Commission on Human Rights), X v. Spain (Algerian) No. 23/1995 (incompatible with art. 22 as the communication was not sufficiently justified as regards the claimed violation of art. 3 of the Convention, but was rather a matter of political asylum).
77. See X v. Spain (No. 23/1995), UN doc. CAT/C/15/D/23/1995 (20 Jan. 1995), para. 4.4.
78. Based on notes by the author, who was associated with the case. See also stenographic transcript of the oral pleadings in Council of Europe Document, Cour/Misc (96) 386, 25 Jun. 1996. The claim for pecuniary damages for lost earnings during the period when his imprisonment had been unlawful was rejected (the European Court '... could not discern the causal connection ... with regard to Article 3 ...'). At the same time it was accepted that '... the applicant must have suffered nonpecuniary damage but... the present judgment affords him sufficient compensation in that respect'. See para. 50, Ahmed v. Austria, above.
79. Although convictions of law enforcement officers are extremely rare and the true scope of the problem is difficult to gauge, anecdotal evidence and the author's personal experience suggest that the rights of detained aliens, especially those who cannot turn to their diplomatic representation, are exposed to the crudest forms of abuse. See, for example, MN. v. France, Report of 10 Mar. 1994 (Application No. 19465/92), which considered sensory isolation upon deportation to Algeria to constitute inhuman and degrading treatment; or Ribitsch v. Austria, Judgment of the European Court of Human Rights (42/1994/489/571), 4 Dec. 1995, which found a violation involving ill-treatment in custody.
80. The 1995 Annual Report of the Austrian High Administrative Court (VwGH) attributes most of the 33.8% increase in appeals to complaints against the Aliens law. According to C. Jabloner, the Court's President, the system of provisional legal protection fails because by the time the Court acts on a particular file, the expulsion measure would have been implemented. See Die Presse, 29 May 1996.