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In a case where assurances have been provided by the receiving State, those assurances constitute a
further relevant factor which the Court will consider. However, assurances are not in themselves
sufficient to ensure adequate protection against the risk of ill-treatment. There is an obligation to
examine whether assurances provide, in their practical application, a sufficient guarantee that the
applicant will be protected against the risk of ill-treatment. The weight to be given to assurances from
the receiving State depends, in each case, on the circumstances prevailing at the material time.236
179. Both expert witnesses who testified on the use of diplomatic assurances, offered by the
Commission and the State, agreed that diplomatic assurances are an additional factor that may be
analyzed when there is a possible risk of violation of human rights in the context of the extradition
of a person, so that they must be assessed and considered with prudence, taking into account all
the circumstances of the case, on a case-by-case basis.237
180. Following the case law of the European Court, the Court considers that, when assessing
diplomatic assurances, the quality of the assurances and their reliability must be analyzed.238 In
the case of Othman (Abu Qatada) v. The United Kingdom239 the European Court systematized
some of the factors that are relevant when evaluating the quality and reliability of the diplomatic
assurances:
(i)
(ii)
(iii)
(iv)
Whether the terms of the assurances have been disclosed to the Court.240
Whether the assurances are specific or are general and vague.241
Who has given the assurances and whether that person can bind the receiving
State.242
If the assurances have been issued by the central government of the receiving State,
whether local authorities can be expected to abide by them. 243
2012, para. 187, and the Human Rights Committee, Mohammed Alzery v. Sweden, Communication No. 1416/2005, U.N. Doc.
CCPR/C/88/D/1416/2005, November 10, 2006, para. 11.5.
236
ECHR, Case of Nizomkhon Dzhurayev v. Russia, No. 31890/11. Judgment of October 3, 2013, para. 111. See also, Case
of Saadi v. Italy [GS], No. 37201/06. Judgment of February 28, 2008, para. 148, and Case of Othman (Abu Qatada) v. The
United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 187.
237
Cf. Affidavit made by Ben Saul on August 18, 2014 (evidence file, folio 6977), and Affidavit made by Jean Carlo Mejía
Azuero on August 15, 2014 (evidence file, folios 6566, 6592y 6593).
238
In this regard, see, ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17,
2012, para. 189. In addition, the Human Rights Committee has indicated that: “The existence of diplomatic assurances, their
content and the existence and implementation of enforcement mechanisms are all factual elements relevant to the overall
determination of whether, in fact, a real risk of proscribed ill-treatment exists”. UN, Human Rights Committee, Case of
Mohammed Alzery v. Sweden, Communication No.1416/2005, U.N. Doc. CCPR/C/88/D/1416/2005, November 10, 2006, para.
11.5.
239
Cf. ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 189.
240
ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 189,
citing, inter alia: ECHR, Case of Ryabikin v. Russia, No. 8320/04. Judgment of June 19, 2008, para. 119, and Case of Muminov
v. Russia, No. 42502/06. Judgment of December 11, 2008, para. 97.
241
ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 189,
citing: ECHR, Case of Saadi v. Italy [GS], No. 37201/06. Judgment of February 28, 2008, para. 147; Case of Klein v. Russia,
No. 24268/08. Judgment of April 1, 2010, para. 55, and Case of Khaydarov v. Russia, No. 21055/09. Judgment of May 20,
2010, para. 111.
242
ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 189,
citing: ECHR, Case of Shamayev and Others v. Georgia and Russia, No. 36378/02. Judgment of April 12, 2005, para. 344; Case
of Kordian v. Turkey, No. 6575/06. Decision of July 4, 2006; Case of Abu Salem v. Portugal, No. 26844/04. Decision of May 9,
2006, and, to the contrary, Case of Ben Khemais v. Italy, No. 246/07. Judgment of February 24, 2009, para. 59; Case of
Garayev v. Azerbaijan, No. 53688/08. Judgment of June 10, 2010, para. 74; Case of Baysakov and Others v. Ukraine, No.
54131/08. Judgment of February 18, 2010, para. 51, and Case of Soldatenko v. Ukraine, No. 2440/07. Judgment of October
23, 2008, para. 73.
243
ECHR, Case of Othman (Abu Qatada) v. The United Kingdom, No. 8139/09. Judgment of January 17, 2012, para. 189,