Hani Khater against Morocco. Decision of the Committee against Torture of November 22, 2019 Communications No. 782/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Morocco.
The applicant indicated that the State party would violate article 3 of the Convention if he were extradited to Egypt.
The Committee's legal position: The Committee refers to its general comment No. 4 (2017) on the application of article 3 of the Convention [against Torture] in the context of article 22, according to which the obligation of non-refoulement arises whenever there are "serious grounds" to believe that a person may be subjected to torture in the State to which he/she must be deported, either in a personal capacity or as a member of a group at risk of being subjected to torture in the destination State. The Committee usually considers in such cases that there are "serious grounds" whenever the risk of being subjected to torture is "foreseeable, personal, existing and real". Personal risk factors may include, in particular: (a) the applicant's ethnicity; (b) the political views or political activities of the applicant or his family members; (c) torture to which he was previously subjected; (d) incommunicado detention or other form of arbitrary and unlawful detention in the country of origin; (e) Clandestine flight from the country of origin due to threats of torture. The Committee also recalls that it attaches great importance to the conclusions of the authorities of the State party concerned; nevertheless, it does not consider itself bound by such conclusions and freely evaluates the information provided to it in accordance with article 22, paragraph 4, of the Convention, taking into account all the circumstances of each case (paragraph 10.4 of the Decision).
The Committee recalls its decisions concerning a number of basic guarantees that should apply to all persons deprived of their liberty and are designed to prevent the use of torture and ill-treatment. These guarantees include the right of prisoners to receive prompt independent legal and medical assistance and to establish contact with their family (paragraph 10.10 of the Decision).
The Committee's assessment of the factual circumstances of the case: It took note of the applicant's claim that, if deported to Egypt, he would be in serious danger of being subjected to torture or cruel, inhuman or degrading treatment there because of his criticism of the regime as a journalist. In this regard, the Committee noted that a warrant had been issued for the applicant's arrest because he had been convicted in absentia in Egypt in three different cases, including on 28 August 2013 he was sentenced to life imprisonment for participating in the forgery of an original document in collusion with a public official. The Committee also stressed that, according to the materials attached to the case, journalists are often victims of arbitrary detention, torture, violations of the right to a fair trial and repression, this is aggravated by the lack of a law on criminal liability for torture provided for in accordance with the Convention... The Committee took into account the applicant's argument that the Court of Cassation had not applied article 721 of the Code of Criminal Procedure and had not been convinced of the political background of the request for the applicant's extradition (paragraph 10.5 of the Decision).
The Committee should have taken into account the existing human rights situation in Egypt, including arbitrary detention, torture and enforced or involuntary disappearances (including of journalists, activists and human rights defenders) committed as punishment for their activities and in order to force them to sign incriminating confessions. Since Egypt's periodic report on the implementation of the Convention has not been considered for a long time, the Committee referred to the conclusions it reached at the sixty-second session of the UN General Assembly in accordance with article 20 of the Convention, when it called the practice of torture in Egypt "systematic". Although Egypt rejected the Committee's request to be allowed to visit the country as part of a confidential investigation, the Committee noted that "it seems that in many cases torture is used after arbitrary arrest and often their purpose is to extract confessions or punish and intimidate political opponents. Torture is used in police stations, prisons and the premises of the State security services and the central security forces. They are practiced by police, military, National Security Service and prison guards. At the same time, prosecutors, judges and officials of the administration of correctional institutions also contribute to the use of torture, doing nothing to curb this practice, arbitrary detention and ill-treatment and not giving way to complaints of torture or ill-treatment." Nevertheless, the assessment of the risk of torture cannot be based solely on taking into account the general situation in Egypt; there must be additional grounds to believe that the alleged victim would be in personal danger (paragraph 10.6 of the Decision).
The Committee noted the following: since 2005, the applicant has been a member and one of the founders of the independent, and therefore unrecognized, Egyptian journalists' union, which has published articles on corruption in Egypt, which dealt with government officials. The Committee pointed out that the applicant, in confirmation that he was being persecuted for political reasons, referred to the following: on August 28, 2013, he was sentenced to life imprisonment for participating in forgery... the document ("forgery and use of forgery") in collusion with a government official, after which his newspapers were confiscated, but he was not detained; the police continued to monitor him, and he was afraid of being arrested and tortured at any moment. The Committee also noted that the sentence to life imprisonment for misconduct, if committed by the applicant, was completely disproportionate to him and that after the extradition request sent by the Egyptian authorities, the situation of journalists in Egypt deteriorated. In addition, the Committee noted that on February 29, 2016 the applicant has already been sentenced without the right of appeal in Morocco by the Criminal Court of First Instance of Casablanca to three months in prison for forgery of documents of private persons, for illegal and unauthorized occupation of a profession provided for by law, and for affixing seals and stamps that may be mistaken for the seals of organs of a foreign State, and that in connection with this conviction The applicant referred to the principle of ne bis in idem (paragraph 10.7 of the Decision).
The Committee pointed out that in granting permission for his extradition, the Court of Cassation had not given any assessment of the risk of torture that threatened him as an independent journalist, given the current situation in Egypt. However, it has not been explained in any way how the State party assessed the risk of torture to the complainant in order to ensure that after returning to Egypt he would not be subjected to treatment contrary to article 3 of the Convention. The Committee recalled that the main purpose of the Convention is to prevent torture (paragraph 10.8 of the Decision) (See: Alan v. Switzerland (CAT/C/16/D/21/1995), paragraph 11.5.).
In the light of the above, the Committee was of the opinion that it was up to the State party to make a specific assessment of the personal and real threat to which the complainant would be exposed in Egypt (taking into account, in particular, the fact that the complainant was sentenced to life imprisonment for a misdemeanor). The Committee also considered that article 721 of the Moroccan Code of Criminal Procedure does not specifically mention the threat of torture and ill-treatment in the event of extradition, but only the threat of deterioration of the personal situation of the person referred to in the extradition request, for one reason or another, related either to his race, religion, nationality or political views, in the case when the violation of the law for which he is being asked to be extradited is qualified by the State party as a political crime or a crime, related to a political crime. The Committee concluded that in this case, the Court of Cassation's assessments did not allow it to challenge the arguments that the applicant was in actual, foreseeable, real and personal danger of being subjected to torture if extradited to Egypt, which, accordingly, would constitute a violation of article 3 of the Convention (paragraph 10.9 of the Decision).
With regard to the complainant's claim that the conditions of detention had a physical impact on him in violation of the requirements of article 16, the Committee noted the lack of clarification from the State party to refute the complainant's allegations about how, after his transfer to Tiflet 2 prison [Morocco], he was placed in a high-security unit, in solitary confinement, without medical care, which affected his health, he was deprived of any contact with his family and lawyer.... Based on the circumstances of the present case, the Committee considered that the applicant's placement in solitary confinement, the restriction of his contact with his family and lawyer and the deprivation of his regular access to medical care constituted a violation of article 16 of the Convention (paragraph 10.10 of the Decision).
The Committee's conclusions: the extradition of the applicant to Egypt would constitute a violation of article 3 of the Convention and that the conditions of the applicant's detention indicate a violation by the State party of article 16 of the Convention (paragraph 11 of the Decision).