Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

124 | PRACTITIONERS GUIDE No. 6
(iv) if the assurances have been issued by the central government of
the receiving State, whether local authorities can be expected to
abide by them [. . .];
(v) whether the assurances concerns treatment which is legal or illegal
in the receiving State [. . .]
(vi) whether they have been given by a Contracting State [. . .];
(vii) the length and strength of bilateral relations between the sending
and receiving States, including the receiving State’s record in
abiding by similar assurances [. . .];
(viii) whether compliance with the assurances can be objectively verified
through diplomatic or other monitoring mechanisms, including
providing unfettered access to the applicant’s lawyers [. . .];
(ix) 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 [. . .];
(x) whether the applicant has previously been ill-treated in the receiving
State [. . .]; and
(xi) whether the reliability of the assurances has been examined by
the domestic courts of the sending/Contracting State [. . .]”. 362
To date, no UN treaty body has approved a transfer on the basis of diplomatic
assurances against torture, including where elaborate monitoring
mechanisms are purported to be in place. 363 However, they have not in
principle ruled out that such assurances could be sufficient, when it can
be assured that there is a concrete mechanism for monitoring their enforcement
and arrangements to assure their effective implementation
are present. The Human Rights Committee, in rejecting diplomatic assurances
with monitoring mechanisms in cases before it, have indicated
that to be acceptable, a monitoring mechanism would, at a minimum,
have to begin to function promptly after the arrival of the concerned
person in the destination State, allow private access to the detainee
by an independent monitor, and allow independent forensic and medi-
362 Othman (Abu Qatada) v. the United Kingdom, ECtHR, op. cit., fn. 313, para. 189
363 In only one case, Attia v. Sweden, CAT, Communication No.199/2002, Views of 24 November
2003, the Committee against Torture found diplomatic assurances subject to monitoring
to be sufficient to protect against ill-treatment; however in the later related case of Agiza
v. Sweden, CAT, op. cit., fn. 332, the Committee found that its decision in Attia had been
based on incomplete information, and that the assurances considered in that case had not
in fact prevented the torture of the applicant in Agiza. In Agiza the CAT found that “the
procurement of diplomatic assurances, which, moreover, provided no mechanism for their
enforcement, did not suffice to protect against this manifest risk [of ill-treatment].”