- 41 129. Consequently, when an individual alleges before a State that he is in danger if he is returned,
the competent authorities of that State must, at least, interview him and make a preliminary
assessment in order to determine whether or not that risk exists if he should be expelled.181 This
signifies that the aforementioned basic guarantees must be respected as part of the opportunity
given to the individual to explain the reasons why he should not be expelled and, if that risk is
verified, the individual should not be returned to the country where the danger exists.182
130. This case represents the first occasion on which the Inter-American Court rules on the
obligations of the States Parties to the Convention in the context of extradition proceedings. In this
regard, the State contested the application of precedents in cases of deportation, asylum or
expulsion. The Court notes that the obligation to ensure the rights to life and to personal integrity,
as well as the principle of non-refoulement, when there is a risk of torture and other forms of cruel,
inhuman or degrading treatment or risk to the right to life, “is applicable to all methods of
returning a person to another State, even extradition.”183
131. Based on the above, this Court finds it pertinent to take note of the extensive case law of the
European Court on this matter, as well as the opinions and decisions of the Human Rights
Committee of the International Covenant on Civil and Political Rights (hereinafter “the Human
Rights Committee” or “the Committee”) and of the Committee against Torture of the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional
Protocol (hereinafter “the Committee against Torture”).
132. In general, the Human Rights Committee has indicated that States are obliged “not to
extradite, deport, expel or otherwise remove a person from their territory where there are
substantial grounds for believing that there is a real risk of irreparable harm, such as that
contemplated in Articles 6 (right to life) and 7 (prohibition of torture or cruel, inhuman or
degrading treatment or punishment) of the [International] Covenant [on Civil and Political Rights],
either in the country to which removal is to be effected or in any country to which the person may
subsequently be removed.”184 In particular, with regard to the death penalty, the Committee has
indicated that: “For countries that have abolished the death penalty, there is an obligation not to
expose a person to the real risk of its application. Thus, they may not remove, either by deportation
or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be
sentenced to death, without ensuring that the death sentence would not be carried out.”185
Regarding the prohibition of torture, the Committee against Torture has stated that, under Article
3, paragraph 1, of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, the State Party has the obligation not to expel a person to another State
181
Cf. Rights and guarantees of children in the context of migration and/or in need of international protection, supra, para.
232. See also, UN, Human Rights Committee, Case of Jonny Rubin Byahuranga v. Denmark, Communication No. 1222/2003,
U.N. Doc. CCPR/C/82/D/1222/2003, December 9, 2004, para. 11.3, and Case of Jama Warsame v. Canada, Communication
No. 1959/2010, UN. Doc. CCPR/C/102/D/1959/2010, September 1, 2011, para. 8.3.
182
Cf. Case of the Pacheco Tineo Family v. Bolivia, supra, para. 136.
183
Affidavit made by Ben Saul on August 18, 2014 (evidence file, folio 6960), citing UN, Committee against Torture, Case of
Chipana v. Venezuela, Communication No. 110/1998, U.N. Doc. CAT/C/21/D/110/1998, November 10, 1998, para. 6.2, and
Case of G.K. v. Switzerland, Communication No. 219/2002, U.N. Doc. CAT/C/30/D/219/2002, May 7, 2003, paras. 6.4 and 6.5.
The European Court has ruled similarly. Cf. ECHR, Case of Babar Ahmad and Others v. The United Kingdom,
Nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. Judgment of April 10, 2012, para. 168 and 176.
184
Cf. UN, Human Rights Committee, General Comment No. 31, Nature of the General Legal Obligation on States Parties to
the Covenant, CCPR/C/21/Rev.1/Add.13, May 26, 2004, para. 12.
185
UN, Human Rights Committee, Case of Roger Judge v. Canada, Communication No.829/1998, UN. Doc.
CCPR/C/78/D/829/1998, October 20, 2003, paras. 10.4 and 10.6. Similarly, Case of Yin Fong, Kwok v. Australia,
Communication No. 1442/2005, UN. Doc. CCPR/C/97/D/1442/2005, October 23, 2009, para. 9.7.