Case Watch: How Does a Court Assess Whether Someone Might be Tortured?

In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

The UN Human Rights Committee has issued decisions in two recent non-refoulement cases—cases concerning the protection against transfer to another country where there is a real risk of prohibited ill-treatment such as torture. The decisions show that the committee assesses the lawfulness of transfer based on what the government knows or could have known at the time of its decision to transfer the individual. The committee appears to disregard information that arises later, even if it casts doubt on the accuracy of the government’s risk assessment.

In Weiss v. Austria [PDF], Austria had transferred Sholam Weiss, a citizen of the United States, back to the United States to serve a lengthy criminal sentence. Weiss had absconded to Austria after being convicted for fraud, racketeering, and money laundering crimes, but prior to his sentencing. The U.S. court then sentenced him in absentia to a term of 845 years. Weiss claimed that transferring him to the United States to face such a long sentence violated the non-refoulement principle, and the committee accepted that such a long sentenced could raise an issue of prohibited ill-treatment. Before it would return him to the United States, Austria obtained the United States’ assurance that Weiss would be entitled to a full appeal. However, upon his return, a U.S. court held that he was entitled only to a limited appeal. Despite the duration and possible disproportionality of his final sentence, the committee found no violation because it considered that Austria based its transfer decision on a careful assessment of the assurances and facts available at the time it transferred Weiss, namely that the real risk of disproportionate and lengthy sentence was diminished by the prospects of an appeal.

In S.V. and others v Canada [PDF], the author, a human rights advocate and dissident from Moldova, unsuccessfully sought refugee status in Canada. Canada accepted that if the author were transferred to Moldova there would be a real risk of torture. But it found that he could be transferred to Romania, where he was also a citizen, without such a risk. The author claimed he would likely be transferred from Romania to Moldova. However, Canada did not find such a risk, and asserted that the author had failed to substantiate any reason that he would be transferred to Moldova. The committee accepted Canada’s findings, and dismissed the application on the grounds that the author had failed to establish a prima facie case for the purpose of admissibility of his communication.

The committee’s approach in these cases might be said to coincide with the approach taken by the European Court of Human Rights in a recent case, where the court considered that if, at the time of transfer, there existed a possibility to avoid conditions that would amount to ill-treatment, this was sufficient to make transfer lawful.

For more on this case and others, read our digest of the UN Human Rights Committee’s 105th session and digest of the UN Human Rights Committee’s 106th session

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