79
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(x)
If the assurances have been issued by the central government of the receiving
State, whether local authorities can be expected to abide by them.225
Whether the assurances concern treatment which is legal or illegal in the receiving
State.226
Whether they have been given by a Contracting State.227
The length and strength of bilateral relations between the sending and receiving
States, including the receiving State’s record in abiding by similar assurances.228
Whether compliance with the assurances can be objectively verified through diplomatic
or other monitoring mechanisms, including providing unfettered access to the
applicant’s lawyers.229
Whether there is an effective system of protection against torture in the receiving
State, including whether it is willing to cooperate with international monitoring
mechanisms (including international human rights NGOs), and whether it is willing to
investigate allegations of torture and to punish those responsible.230
Whether the reliability of the assurances has been examined by the domestic courts of
the sending/Contracting State.231
249. As for the consideration given to context and the weight that must be assigned to it
even if assurances have been offered, in Agiza v. Sweden the United Nations Committee against Torture
wrote that the rendition of the petitioner from Sweden upon the written assurances presented by the
Egyptian Government representative was in violation of Article 3 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment. The assurances in that case stated that
the petitioner would not be subjected to torture or any other inhuman treatment, that he would not be
sentenced to death or executed, and that the Swedish Embassy could monitor his trial and visit him
before and after his conviction. Nevertheless, the Committee learned that the Swedish authorities knew
or should have known the risk of torture facing the petitioner in Egypt. The Committee pointed out that
“[t]he procurement of diplomatic assurances, which, moreover, provided no mechanism for their
enforcement, did not suffice to protect against this manifest risk.”232
225
ECHR. Chahal v. the United Kingtom. p. 105-107. Cited in. ECHR. Case of Othman (Abu Qatada) v. The United
Kingdom. Application no. 8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
226
ECHR. Cipriani v. Italy, no. 221142/07, 30 March 2010; Youb Saoudi v. Spain, no. 22871/06, 18 September 2006;
Ismaili v. Germany, no. 58128/00, 15 March 2001; Nivette v. France, no. 44190/98. Cited in. ECHR. Case of Othman (Abu
Qatada) v. The United Kingdom. Application no. 8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
227
ECHR. Chentiev and Ibragimov v. Slovakia, nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (no.
48514/06, 17 February 2009). Cited in. ECHR. Case of Othman (Abu Qatada) v. The United Kingdom. Application no.
8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
228
ECHR. Babar Ahmad and Others, p. 107 and 108; Al-Moayad v. Germany, no. 35865/03, p. 68, 20 February 2007.
Cited in. ECHR. Case of Othman (Abu Qatada) v. The United Kingdom. Application no. 8139/09. Judgment of 17 January
2012. Final 9 May 2012. Para. 189.
229
ECHR. Chentiev and Ibragimov v. Slovakia, nos. 21022/08 and 51946/08, 14 September 2010; Gasayev v. Spain (no.
48514/06, 17 February 2009). Cited in. ECHR. Case of Othman (Abu Qatada) v. The United Kingdom. Application no.
8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
230
ECHR. Koktysh v. Ukraine, no. 43707/07, p. 63, 10 December 2009). Cited in. ECHR. Case of Othman (Abu Qatada)
v. The United Kingdom. Application no. 8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
231
ECHR. Al-Moayad v. Germany, no. 35865/03, p. 66-69, 20 February 2007. Cited in. ECHR. Case of Othman (Abu
Qatada) v. The United Kingdom. Application no. 8139/09. Judgment of 17 January 2012. Final 9 May 2012. Para. 189.
232
Committee against Torture, Algiza v. Sweden, paragraph 13.4.