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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 125
cal expertise, available at any moment. 364 The monitoring undertaken
would have to be, “in fact and in the concerned person’s perception,
objective, impartial and sufficiently trustworthy.” 365 Even where such
high levels of safeguards do apply, the former UN Special Rapporteur on
Torture affirmed that “diplomatic assurances with regard to torture are
nothing but attempts to circumvent the absolute prohibition of torture
and refoulement.” 366
g) Place of transfer: indirect refoulement and internal
relocation
The principle of non-refoulement applies both to transfers to a State
where the person will be at risk (direct refoulement), and to transfers to
States where there is a risk of further transfer to a third country where
the person will be at risk (indirect refoulement). 367 The Grand Chamber
of the European Court of Human Rights, in Hirsi Jamaa and Others v.
Italy, clarified that the sending State must “ensure that the intermediary
country offers sufficient guarantees to prevent the person concerned
being removed to his country of origin without an assessment of
the risks faced”. 368 The Court stressed that, including in cases of indirect
refoulement, the State “is not exempt from complying with its obligations
under Article 3 of the Convention because the applicants failed to
ask for asylum or to describe the risks faced as a result of the lack of
an asylum system in [the intermediary country of return]. It reiterates
that the [State] authorities [should ascertain] how the [intermediary
country] authorities fulfilled their international obligations in relation to
the protection of refugees.” 369
In considering whether there is a breach of the principle of non-refoulement,
the exact location within a country to which the person is to
be transferred may be important. If a person can be safely relocated in
one part of the country, without incurring the risk of violation, the obligation
of non-refoulement will not be violated. 370 The federal or unitary
364 Alzery v. Sweden, CCPR, Communication No. 1416/2005, Views of 10 November 2006,
para. 11.5; Zhakhongir Maksudov and Others v. Kyrgyzstan, CCPR, op. cit., fn. 324,
paras. 12.5–12.6; Concluding Observations on Denmark, CCPR, UN Doc. CCPR/C/DNK/CO/5,
16 December 2008, para. 10.
365 Pelit v. Azerbaijan, CAT, op. cit., fn. 339, para. 11.
366 Nowak, Report 2005, op. cit., fn. 359, para. 32.
367 CCPR, General Comment No. 31, op. cit., fn. 46, para. 12; General Comment No. 1: Implementation
of article 3 of the Convention in the context of article 22, CAT, UN Doc. A/53/44,
annex IX, 21 November 1997, para. 2; Hamayak Korban v. Sweden, CAT, Communication
No. 88/1997, Views of 16 November 1998, para. 7; Salah Sheekh v. the Netherlands,
ECtHR, op. cit., fn. 317, para. 141; M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324,
para. 342.
368 Hirsi Jamaa and Others v. Italy, ECtHR, GC, op. cit., fn. 46, para. 147.
369 Ibid., para. 157.
370 B.S.S. v. Canada, CAT, op. cit., fn. 330, para. 11.5.