Decision; Subjects: MOROCCO, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.24-13893 (E) 031024 041024
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1111/2021*, **, ***
Communication submitted by:
Zikrullah Hasan and Buzainer Wubuli
(represented by counsel for MENA Rights Group
and Safeguard Defenders)
Alleged victim:
Yidiresi Aishan
State party:
Morocco
Date of complaint:
15 December 2021 (initial submission)
References:
Decision taken pursuant to rules 114 and 115 of
the Committee’s rules of procedure, transmitted
to the State party on 20 December 2021 (not
issued in document form)
Date of adoption of decision:
15 July 2024
Subject matter:
Deportation to China
Procedural issue:
None
Substantive issues:
Risk of torture or other cruel, inhuman or
degrading treatment if deported to country of
origin
Article of the Convention:
3
1.1
The complainants are Zikrullah Hasan and Buzainer Wubuli, both nationals of China,
the brother and wife, respectively, of Yidiresi Aishan (Idris Hasan). They present the
communication on behalf of the latter. Mr. Aishan is a Chinese citizen, of Muslim faith,
belonging to the Uighur minority and born in the Xinjiang Uighur Autonomous Region. An
order has been issued for his deportation to China. The complainants claim that Mr. Aishan’s
extradition would constitute a violation by the State party of article 3 of the Convention. The
State party made the declaration pursuant to article 22 (1) of the Convention on 19 October
2006. The complainants are represented by counsel.
1.2
On 20 December 2021, pursuant to rule 114 of its rules of procedure, the Committee,
acting through its Rapporteur on new complaints and interim measures, requested the State
* Adopted by the Committee at its eightieth session (8–26 July 2024).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Claude Heller, Peter Vedel Kessing, Maeda Naoko, Ana Racu and
Bakhtiyar Tuzmukhamedov.
*** An individual opinion by Committee member Bakhtiyar Tuzmukhamedov (partly dissenting) is
annexed to the present decision.
United Nations
CAT/C/80/D/1111/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
16 August 2024
English
Original: French
CAT/C/80/D/1111/2021
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party not to deport Mr. Aishan to China while it considered the complaint. On 22 February
2022, the State party informed the Committee that it had complied with the request.
1.3
On 3 November 2023, pursuant to rule 115 (3) of its rules of procedure, the Committee,
acting through its Rapporteur on new communications and interim measures, denied the State
party’s request to examine the admissibility of the communication separately from its merits.
Factual background
2.1
Between 2008 and 2009, Mr. Aishan was arrested by police outside the China
University of Petroleum in Qingdao, where he was a student. He was detained for a day,
beaten and then released. In 2012, Mr. Aishan and his family decided to move to Turkey to
escape the discriminatory policies put in place by the Chinese Government, particularly with
regard to access to employment. After arriving in Turkey, Mr. Aishan spoke about the human
rights situation in the Xinjiang region. Between 2014 and 2017, he was administratively
detained in several holding centres, including those in Kayseri and Erzurum, by the Turkish
immigration administration.
2.2
In 2020, Turkey issued a humanitarian visa to Mr. Aishan. In 2021, feeling that he
was no longer safe in Turkey due to several direct requests filed by the Chinese police against
Chinese activists living there, Mr. Aishan decided to move to Morocco.1 On the night of
19–20 July 2021, upon arrival at Casablanca airport, Mr. Aishan was arrested. On 20 July
2021, he was handed over to the national brigade of the criminal investigation department,
which informed him that a Red Notice had been issued for him on 13 March 2017 by the
International Criminal Police Organization (INTERPOL), at the request of the Chinese
authorities, who accused him of belonging to a terrorist organization under article 120 of the
Chinese Criminal Law. The Red Notice stated that Mr. Aishan left China in September 2012,
under the pretext of going to study abroad, while reportedly joining the Eastern Turkistan
Islamic Movement.2 The Red Notice also stated that Mr. Aishan was the administrator of the
Sadik web platform, that an arrest warrant had been issued for him on 10 July 2014, that he
was wanted for active participation in a terrorist organization and that he faced life
imprisonment. In addition, the Chinese authorities accused Mr. Aishan of traveling to the
Syrian Arab Republic to join the Eastern Turkistan Islamic Movement and then to Turkey to
handle “online publicity “ that allegedly served as the inspiration for several people arrested
on terrorism charges in China and involved in the 21 September 2014 terrorist attacks in the
Luntai district.3 The persons who confessed to the attacks were reportedly forced to do so.
2.3
On 20 July 2021, Mr. Aishan was brought before the prosecutor at the Casablanca
Court of First Instance, without the benefit of legal counsel. The prosecutor ordered that he
should be placed in custody at Tiflet 2 prison pending a ruling by the Court of Cassation. On
23 July 2021, Mr. Aishan was allowed to communicate with his wife by telephone. On
28 July 2021, the prosecutor filed a request for Mr. Aishan’s extradition with the President
of the Court of Cassation.4 On 28 and 29 July 2021, two of his lawyers were authorized to
meet him for the first time. After he was placed in custody pending extradition, Mr. Aishan
filed an asylum application with the Office of the United Nations High Commissioner for
Refugees in Rabat.
2.4
On 11 August 2021, INTERPOL cancelled the Red Notice issued for Mr. Aishan for
failure to comply with the articles 2 and 3 of its Constitution and with its Rules on the
Processing of Data. On 12 August 2021, Mr. Aishan’s case was brought before the criminal
division of the Court of Cassation for consideration of the extradition request. However, the
hearing was postponed twice, on 26 August and 1 September 2021, in application of article 5
of the extradition agreement between Morocco and China, as the Chinese authorities had
failed to forward the indictment against Mr. Aishan to the Moroccan authorities. At the
hearing on 1 September 2021, Mr. Aishan learned that the extradition request dated
24 August 2021 had been forwarded by the requesting State. The request included, among
1 The complainants did not give the exact date of Mr. Aishan’s arrival in Morocco.
2 The Eastern Turkistan Islamic Movement is considered a terrorist group in many countries.
3 In September 2014, 50 people, including 40 assailants, were killed in an attack involving multiple
explosions and a police counterattack in the Luntai district in Xinjiang.
4 Mr. Aishan received this information on 29 July 2021 from one of his lawyers.
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other things, an authorization for arrest, an arrest warrant and screenshots of the Siddiqlar
Web website, administered by Mr. Aishan. On 13 August 2021, the Chinese authorities
submitted a request for Mr. Aishan’s provisional arrest to the Moroccan authorities.
2.5
On 22 September 2021, during a fourth hearing held before the Court of Cassation in
Rabat, Mr. Aishan’s defence questioned the validity of the INTERPOL Red Notice, which
was finally withdrawn by the organization, and the fact that the extradition request had not
been requested by an independent judicial authority but by a government agency. On
21 October 2021, the Office of the United Nations High Commissioner for Refugees in
Morocco issued a certificate stating that Mr. Aishan had the status of an asylum-seeker. A
new hearing took place on 27 October 2021, during which the defence submitted an
application for provisional release. On 24 November 2021, Mr. Aishan’s lawyers presented
their arguments concerning the risk of torture to which he was exposed, and he was therefore
granted refugee status. On 15 December 2021, the Court of Cassation ruled in favour of the
Mr. Aishan’s extradition.5
The complaint
3.1
The complainants allege a violation by the State party of article 3 of the Convention
if Mr. Aishan is extradited to China.
3.2
The complainants maintain that there are numerous reports of systematic and massive
human rights violations against Muslims in the Xinjiang Uighur Autonomous Region. These
include the mass imprisonment of Muslims and their internment in training or education
centres, where defiant persons are subjected to indoctrination and torture.6 The complainants
point out that the United States Department of State and the parliaments of Canada and the
Netherlands have determined that the conduct of China in this region constitutes genocide
under international law.7 They maintain that the Working Group on Arbitrary Detention has
considered that the large number of opinions issued concerning China indicated a systemic
problem of arbitrary detention in that country.8 They also point out that, although China has
been a party to the Convention since 1988, the definition of torture in Chinese law has
remained fairly restrictive.
3.3
The complainants claim that there are “serious grounds” for believing that Mr. Aishan
would be in danger of being subjected to torture if the extradition procedure were to be
completed, in particular because of the reasons given for his extradition (terrorism). They
also argue that membership of a religious and ethnic minority, namely Mr. Aishan’s actual
or assumed membership of the Eastern Turkistan Islamic Movement, is an additional risk
factor. The complainants fear that Mr. Aishan will be placed in pretrial detention, where he
would be at risk of torture9 or solitary confinement10 due to the seriousness of the charges
against him. They also argue that the European Court of Human Rights has already
highlighted the risks of imprisonment and ill-treatment to which Uighurs repatriated to China
are exposed.11 They add that many cases of extradition of Uighurs wanted in China have
5 Moroccan Court of Cassation, ruling No. 1799, case No. 16129/3/6/2021.
6 See, among others, Amnesty International, “Like We Were Enemies in a War”: China’s Mass
Internment, Torture, and Persecution of Muslims in Xinjiang, 10 June 2021,
(https://www.amnesty.org/en/documents/asa17/4137/2021/en/); and Human Rights Watch, “China:
Free Xinjiang ‘Political Education’ Detainees”, 10 September 2017
(https://www.hrw.org/news/2017/09/10/china-free-xinjiang-political-education-detainees). See also
CERD/C/CHN/CO/14-17, para. 40.
7 Human Rights Watch, “Break Their Lineage, Break Their Roots”: China’s Crimes against Humanity
Targeting Uyghurs and Other Turkic Muslims, 19 April 2021
(https://www.hrw.org/report/2021/04/19/break-their-lineage-break-their-roots/chinas-crimes-against-
humanity-targeting).
8 A/HRC/WGAD/2020/78, para. 65.
9 Amnesty International, “Torture in China: Who, What, Why and How”, 11 November 2015
(https://www.amnesty.org/en/latest/campaigns/2015/11/torture-in-china-who-what-why-and-how/).
10 Article 29 of the Counterterrorism Law of China stipulates that terrorism suspects and prisoners may
be subjected to solitary confinement.
11 European Court of Human Rights, M.A. and others v. Bulgaria, Application No. 5115/18, Judgment,
20 February 2020.
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resulted in enforced disappearances on their arrival. This risk is compounded by the practice
of arbitrary detention and enforced disappearance of people who have links with Turkey and
who are from the Bayingolin Mongol autonomous prefecture, a sub-region of Xinjiang and
Mr. Aishan’s place of origin.
3.4
The complainants point out that Mr. Aishan has pursued all possible effective
remedies. On 15 December 2021, the Moroccan Court of Cassation, as a court of final
instance, ruled in favour of the Chinese authorities’ extradition request. As its decision is not
subject to ordinary appeal, it is final and enforceable after confirmation by decree of the Head
of Government.
State party’s observations on admissibility
4.1
The State party submitted its observations on the admissibility of the complaint in a
note verbale dated 21 February 2022. It considers that the complainants have not exhausted
all available domestic remedies.
4.2
The State party indicates that, following Mr. Aishan’s arrest on 20 July 2021 at
Casablanca airport, followed by his placement in custody pending extradition at Tiflet 2
prison in application of the Red Notice issued by INTERPOL at the request of the Chinese
authorities,12 INTERPOL decided to cancel the Red Notice, as it was not in compliance with
articles 2 and 3 of its Constitution. However, despite this cancellation, the Chinese authorities
maintained their extradition request for Mr. Aishan and sent the Moroccan authorities a
request for provisional arrest, 13 in accordance with the provisions of article 6 of the
extradition agreement signed between the two States. The State party also recalls that, in the
judicial phase of the extradition procedure, the Court of Cassation issued an opinion on
15 December 2021 approving the request filed by the Chinese authorities. The State party
points out that appeals for retraction of the rulings of the Court of Cassation may be filed in
accordance with articles 563 and 564 of the Moroccan Code of Criminal Procedure and that
Mr. Aishan lodged a retraction appeal through his defence counsel on 1 February 2022,
against the Court of Cassation’s opinion of 15 December 2021. As a result, Mr. Aishan’s
extradition proceedings have been suspended.
4.3
The State party emphasizes that Mr. Aishan’s detention benefits from all judicial
guarantees, including the assistance of an interpreter and counsel and access to basic prison
services (recreation, food, physical exercise, etc.).
Comments by the complainants on the State party’s observations on admissibility
5.1
In their comments of 28 March 2022, the complainants assert that the State party did
not indicate which lawyer had lodged the appeal dated 1 February 2022 in favour of
Mr. Aishan. They point out that none of Mr. Aishan’s three lawyers submitted the appeal,
which appears to be the work of a lawyer of the National Human Rights Council who has
never visited Mr. Aishan. The complainants consider that, although the retraction appeal
brought on behalf of Mr. Aishan is not prejudicial to him, the appeal cannot be considered an
effective remedy, as it cannot effectively prevent his extradition and has no suspensive effect.
5.2
The complainants point out that, when the matter was referred to the Committee, the
State party considered the Court of Cassation’s rulings on the matter to be final and res
judicata. In this respect, they point out that, in the case of Al Hashimi v. Morocco, the
Moroccan Head of Government had validated an extradition ruling handed down by the Court
of Cassation by signing an extradition decree even before the Supreme Court had ruled on a
pending retraction action.14 They also point out that, as the Committee has noted in its case
law, Moroccan law does not set out the suspensive nature of an appeal. The complainants
claim that the State party has not provided any information to demonstrate the effectiveness
of the retraction appeal, nor has it specified whether Mr. Aishan’s extradition proceedings
12 In accordance with articles 729, 730 and 731 of the Chinese Criminal Procedure Law.
13 Official request for provisional arrest sent on 13 August 2021 by the National Central Bureau in
Beijing to the National Central Bureau in Rabat (reference No. IP/D011/201606154).
14 See Committee against Torture, Al Hashimi v. Morocco, communication No. 592/2014, referred to in
Khater v. Morocco (CAT/C/68/D/782/2016), para. 5.5.
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were suspended as a result of the lodging of the retraction appeal. Based on the above, the
complainants request the Committee to declare the complaint admissible.
State party’s observations on the merits
6.1
On 5 August 2022, the State party submitted its observations on the merits of the
complaint.15 It points out that Morocco and China have a framework for judicial cooperation
through the extradition agreement signed on 11 May 2016. The State party also points out
that article 2 of this extradition agreement provides that the acts in question must be
punishable by a custodial sentence of at least 1 year or a more severe penalty under the
legislation of the States parties. The State party maintains that, in accordance with the
provisions of article 9 of the International Covenant on Civil and Political Rights and article
23 of the Moroccan Constitution, Mr. Aishan’s arrest took place on the basis of the
international arrest warrant issued for the offence of membership of a terrorist organization,
a criminal offence under both Chinese and Moroccan legislation.16
6.2
The State party notes that on 20 July 2021, at the time of his arrest, Mr. Aishan was
informed of the reason for his arrest and appeared before the prosecutor’s office of the
Casablanca court of first instance, in the presence of a translator, who read out the
international arrest warrant issued for him. He also benefited from the assistance of counsel
from the day of his arrest and for the preparation of his defence from the time of his placement
in custody pending extradition, in accordance with article 14 (3) (b) of the International
Covenant on Civil and Political Rights, as well as at the time of his appearance before the
Court of Cassation. The State party notes that the Court of Cassation considered that the
complainants’ argument that Mr. Aishan’s extradition request had not been made by an
independent judicial authority but by a government agency was unfounded. It also notes that
article 5 of the extradition agreement between Morocco and China does not specify which
authorities in the two countries are competent to submit extradition requests and that it was
therefore up to the Chinese party to determine which authority was competent to issue the
request in question.
6.3
The State party further indicates that Mr. Aishan’s extradition proceedings have been
suspended following his appeal for retraction of the Court of Cassation’s opinion allowing
his extradition to China.
6.4
With regard to Mr. Aishan’s conditions of detention, the State party points out that he
enjoys all the rights guaranteed by the law on the organization and operation of prisons, in
accordance with the relevant international standards and instruments, including access to his
lawyers, leisure activities and adequate food, access to the prison’s telephone line and access
to his mail, within the limits of the prison legislation in force. The State party also points out
that Mr. Aishan has had eight medical consultations, the last of which was on 13 May 2022.
The State party further notes that representatives of the National Human Rights Council
visited Mr. Aishan on 1 October 2021 and 10 March 2022. Representatives of the Moroccan
Human Rights Organization, accompanied by a doctor and two lawyers, also visited him, on
30 November 2021.
6.5
On 4 January 2024, the State party sent further observations. 17 It argues that
article 3 (1) of the Convention requires that the person concerned face a foreseeable, real and
personal risk of being tortured in the country to which he or she is to be extradited and that
the risk of torture must be assessed on grounds that go beyond mere supposition or suspicion,
even though it is not necessary to show that the risk is highly probable.18 The State party
recalls that, in its practice, the Committee has considered that the existence in a country of a
consistent pattern of gross, flagrant or mass violations of human rights does not in itself
15 In its comments of 4 January 2024, the State party indicates that the comments of 5 August 2022
concerned both admissibility and the merits.
16 See article 218-1-1 of the Moroccan Criminal Code.
17 These observations were submitted after the secretariat communicated the note verbale dated
3 November 2023 indicating that the Committee had declined to examine the admissibility of the
communication separately from the merits.
18 Committee against Torture, E.R.K. and Y.K. v. Sweden, communications Nos. 270/2005 and
271/2005, paras. 7.2 and 7.3.
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constitute sufficient grounds for determining that a particular person would be in danger of
being subjected to torture upon return to that country19 and that there must be additional
grounds for believing that the individual in question would be personally at risk. In the
present case, the State party maintains that the complainants have failed to demonstrate why
their communication should be admissible under article 22 of the Convention. It considers
that the communication in question is ill-founded and should be declared inadmissible by the
Committee. The State party further stresses that the complainants have to establish that
currently, as the Committee examines the case, there are substantial grounds for believing
that Mr. Aishan would be in danger of being subjected to torture if extradited. The State party
reiterates that Mr. Aishan is currently detained at the Tiflet 2 local prison, where all his rights
are ensured, in accordance with the law governing the organization and operation of prisons,
in line with the international standards in force.
Complainants’ additional comments
7.1
On 12 February 2024, the complainants submitted additional comments. They say that
they welcomed the decision to suspend the extradition procedure. However, they claim that
there is some confusion as to the reason for this decision by the State party, as it is not clear
whether the decision stems from the Committee’s request for interim measures or from the
retraction appeal. The complainants point out that the State party, by juxtaposing information
on the examination of the retraction appeal with information on the suspension of the
extradition procedure, implies that the appeal for retraction has suspensive effect, which, in
the light of the Committee’s consistent case law concerning similar Moroccan extradition
cases, is not the case. The complainants express concern about the lack of progress in the
examination of the appeal for retraction and about the risk that Mr. Aishan’s detention will
be prolonged, notwithstanding the Court of Cassation’s decision on the appeal in question.
7.2
The complainants maintain that the Red Notice issued against Mr. Aishan is not an
international arrest warrant and that it is up to each country to decide on the legal value to be
attached to it and the need to make arrests in that framework. 20 In this respect, the
complainants argue that the Moroccan authorities were not obliged to arrest Mr. Aishan. They
recall that, despite the cancellation of the Red Notice, the Moroccan authorities are keeping
Mr. Aishan in custody pending extradition on the basis of the extradition agreement signed
with China. The complainants point out that the agreement in question21 was promulgated on
30 August 2017, ratified on 22 January 2021 by the Standing Committee of the Chinese
National People’s Congress and published in the Moroccan Official Gazette on 5 April 2022,
after the Head of Government countersigned it on 21 January 2022,22 i.e., after Mr. Aishan’s
placement in custody pending extradition and the favourable opinion issued by the Court of
Cassation.
7.3
The complainants emphasize that, despite having received information about the
cancellation of the Red Notice against Mr. Aishan on 11 August 2021, the Moroccan
authorities decided to keep him in custody pending extradition. They point out that the
Moroccan authorities received the request for provisional arrest and the request for
extradition on 13 and 30 August 2021, respectively, and that the time that passed between
the cancellation of the Red Notice and the receipt of those documents could have justified a
re-examination of the merits and of the necessity of Mr. Aishan’s detention, since his arrest
and placement in custody pending extradition were based on the Red Notice.
7.4
The complainants point out that the State party has failed to assess the political nature
of the offence with which Mr. Aishan is charged. They recall that the Committee has already
expressed concern, in its concluding observations on the fifth periodic report of China, about
the fate of dissidents and members of ethnic minorities prosecuted or threatened with
19 Committee against Torture, R.D. v. Sweden, communication No. 220/2002, para. 8.2.
20 INTERPOL, “Red Notices”, available at https://www.interpol.int/en/How-we-work/Notices/Red-
Notices.
21 See Act No. 44-16 approving the agreement, promulgated by Royal Decree No. 1-17-48 on 30 August
2017.
22 Morocco, Official Gazette, 5 April 2022, available at
http://www.sgg.gov.ma/BO/FR/2873/2022/ECI_11_Fr.pdf.
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prosecution for vaguely defined offences such as the crime of terrorism.23 Consequently, the
complainants consider that the State party’s argument that Mr. Aishan was the subject of an
international arrest warrant “for membership of a terrorist organization”, which itself was
criminalized by Moroccan law, cannot be validly applied against Mr. Aishan under
international human rights law.
7.5
With regard to the risk run by Mr. Aishan under article 3 of the Convention, the
complainants note that, despite the multiplicity of reports and documents submitted, the State
party made no observations to challenge the information that has been submitted. In this
context, they invite the Committee to follow the reasoning of the European Court of Human
Rights in the case of Liu v. Poland.24
7.6
The complainants argue that Mr. Aishan’s indefinite detention, 25 the uncertainty
surrounding his extradition, the length of his imprisonment and the separation from his family
have an impact on his mental health.26 They argue that, although Mr. Aishan appears to be
receiving proper treatment in detention, the State party has never explored the possibility of
putting in place alternatives to his detention. They report that, as a result of Mr. Aishan’s
detention, the Office of the United Nations High Commissioner for Refugees has still not
been able to move his asylum claim forward, as repeated requests for access to conduct the
necessary interviews have not been fulfilled. The complainants point to the absence of legal
provisions enabling Mr. Aishan’s preventive detention to be lifted, a legal vacuum that the
State party has already recognized, in the case of Alhaj Ali v. Morocco.27
7.7
With regard to Mr. Aishan’s right to a fair trial, the complainants point out that he was
not provided with legal assistance at the time of his hearing before the prosecutor. As a result,
at that stage of the proceedings, he was unable to benefit from legal advice when he was
asked to explain the personal risks involved in the event of extradition to his country of origin.
Moreover, the Moroccan Code of Criminal Procedure does not guarantee access to counsel
during the initial phase of police custody,28 which is contrary to the recommendations of the
Special Rapporteur on torture, who has considered that any person who has been arrested
should have access to a lawyer within 24 hours of the arrest.29
7.8
The complainants note that the impossibility for Mr. Aishan to challenge the opinion
of the Court of Cassation through a suspensive appeal runs counter to the essence of article
14 (5) of the International Covenant on Civil and Political Rights and the Committee’s
general comment No. 4 (2017), which encourages States parties to guarantee the right of any
person subject to a deportation order to lodge an appeal against enforcement with an
independent administrative and/or judicial body within a reasonable period of time from the
notification of the order, with suspensive effect.30
7.9
The complainants request the Committee to invite the State party to review and amend
the laws that encourage or allow a violation of article 3 of the Convention, in order to
guarantee the right of any person subject to an expulsion order to lodge an appeal against
enforcement of that order with an independent administrative and/or judicial body within a
reasonable time of notification of the order, with suspensive effect. The complainants believe
that article 721 of the Code of Criminal Procedure, which deals with the grounds for refusing
extradition, should also be amended to fully reflect article 3 of the Convention.
23 CAT/C/CHN/CO/5, para. 36.
24 European Court of Human Rights, Liu v. Poland, Application No. 37610/18, Judgment, 6 October
2022.
25 In November 2023, the Office of the United Nations High Commissioner for Refugees informed the
complainants that Mr. Aishan was still in solitary confinement at the time. However, in early 2024,
Mr. Aishan was finally able to spend time in the yard with other inmates.
26 F.J. et al. v. Australia (CCPR/C/116/D/2233/2013), para. 10.6.
27 CAT/C/58/D/682/2015, para. 1.4.
28 See France, Assemblée nationale, Étude d’impact : Projet de loi relatif à la garde à vue, 12 October
2010 (https://www.assemblee-nationale.fr/13/projets/pl2855-ei.asp), annex 3.
29 E/CN.4/1990/17, para. 272 (c); see also E/CN.4/1995/34, para. 926 (d); and A/56/156, para. 39 (f).
30 Committee against Torture, general comment No. 4 (2017), para. 18 (e).
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State party’s additional observations
8.1
On 29 May 2024, the State party submitted its additional observations. With regard to
the complainants’ allegation that the reason for the suspension of Mr. Aishan’s extradition is
unclear, it points out that it is due both to the need to comply with the interim measures
requested by the Committee and to await the decision of the Court of Cassation on the
retraction appeal of 1 February 2022. The State party notes that, contrary to what the
complainants have reported, the retraction request was initiated on 23 December 2021 by
Mr. Aishan, who authorized a lawyer to act on his behalf for that purpose.
8.2
With regard to the argument that the Red Notice issued by INTERPOL does not
constitute an international arrest warrant and that it is up to each State to decide on its legal
value, the State party refers to article 87 of the INTERPOL Rules on the Processing of Data,
which allows the State where the wanted person has been located to take all measures
authorized by national law and applicable international treaties, including the provisional
arrest of the wanted person, with a view to implementing the notice.
8.3
In response to the complainants’ allegation that the extradition agreement between
China and Morocco was applied after Mr. Aishan’s arrest, the State party points out that the
agreement in question entered into force for both parties on 16 April 2021, well before
Mr. Aishan’s arrest on 20 July 2021.31
8.4
With regard to the complainants’ allegation that the assessment of the risks faced by
Mr. Aishan was inadequate, the State party points out that the Court of Cassation specified
that Mr. Aishan had not presented any serious reasons to confirm with certainty that the
extradition request was based on racial, religious or political grounds, that he would not
receive a fair trial or would be subjected to torture, that he would be tried in China on grounds
other than the charges that were the subject of the extradition request, or that he would be
tried on the basis of his gender, race or religion.
Issues and proceedings before the Committee
Consideration of admissibility
9.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention. The Committee has
ascertained, as it is required to do under article 22 (5) (a) of the Convention, that the same
matter has not been and is not being examined under another procedure of international
investigation or settlement.
9.2
In accordance with article 22 (5) (b) of the Convention, the Committee shall not
consider any communication from an individual unless it has ascertained that the individual
has exhausted all available domestic remedies. It notes that Mr. Aishan’s appeals having been
rejected, he has obtained a final negative ruling on his request to halt his deportation to China.
The Committee further notes that the State party contested the admissibility of the complaint,
arguing that the complainants had not exhausted the available domestic remedies, as
Mr. Aishan had on 1 February 2022 appealed for the retraction of the 15 December 2021
opinion of the Court of Cassation authorizing his extradition. The Committee notes the State
party’s argument that the proceedings are still pending before the national authorities.
9.3
The Committee notes the complainants’ argument that the rulings of the Court of
Cassation on extradition are final, that Moroccan law is silent on the suspensive nature of this
remedy and that the State party has not submitted any information to demonstrate the
suspensive nature of the appeal for retraction. The Committee also notes that in other cases
brought to its attention, an extradition order had been signed by the Head of Government
31 According to the State party, article 19 of the extradition agreement signed between Morocco and
China in Beijing on 11 May 2016 stipulates that the agreement enters into force 30 days after receipt
through diplomatic channels of the last two notifications. As Morocco ratified the agreement on
17 April 2019 and China did so on 16 March 2021, the agreement entered into force on 16 April
2021.
CAT/C/80/D/1111/2021
GE.24-13893
9
even before the Court of Cassation had ruled on a retraction action,32 thus confirming that the
Court of Cassation’s ruling was considered to be final and res judicata. Taking into
consideration the silence of Moroccan law concerning the suspensive nature of the appeal
and the fact that the State party has not provided any concrete example of case law clarifying
the effective nature of the appeal for retraction,33 the Committee considers in the present case
that the automatic effect of the retraction appeal has not been established by the State party,
notwithstanding the stay of Mr. Aishan’s expulsion to China.
9.4
In the circumstances of the present case, the Committee finds that article 22 (5) (b) of
the Convention does not preclude it from declaring the communication admissible. As the
Committee finds no further obstacles to admissibility, it declares the complaint admissible
and proceeds with its consideration of the merits.
Consideration of the merits
10.1
The Committee has considered the communication in the light of all the information
made available to it by the parties, in accordance with article 22 (4) of the Convention.
10.2
The issue before the Committee is whether the expulsion of Mr. Aishan to China
would constitute a violation of the State party’s obligation under article 3 of the Convention
not to expel or return (“refouler”) a person to another State where there are serious grounds
for believing that he or she would be in danger of being subjected to torture or other cruel,
inhuman or degrading treatment or punishment.
10.3
The Committee must consider whether there are substantial grounds for believing that
Mr. Aishan would be personally in danger of being subjected to torture if he were returned
to China. In assessing that risk, the Committee must take into account all relevant
considerations, pursuant to article 3 (2) of the Convention, including the possible existence
of a consistent pattern of gross, flagrant or mass violations of human rights.34 However, the
Committee recalls that the aim of this determination is to establish whether the individual
concerned would be personally at a foreseeable and real risk of being subjected to torture in
the country to which he or she would be returned. It follows that the existence of a pattern of
gross, flagrant or mass violations of human rights in a country does not as such constitute
sufficient reason for determining that a particular person would be in danger of being
subjected to torture on return to that country; additional grounds must be adduced to show
that the individual concerned would be personally at risk. Conversely, the absence of a
consistent pattern of flagrant violations of human rights does not mean that a person might
not be subjected to torture in his or her specific circumstances.35
10.4
The Committee recalls its general comment No. 4 (2017), which states, first, that the
non-refoulement obligation exists whenever there are “substantial grounds” for believing that
the person concerned would be in danger of being subjected to torture in a State to which he
or she is facing deportation, either as an individual or as a member of a group which may be
at risk of being tortured in the State of destination and, second, that the Committee’s practice
has been to determine that “substantial grounds” exist whenever the risk is “foreseeable,
personal, present and real”. 36 It also recalls that the burden of proof is borne by the
complainant, who must present an arguable case – that is, submit substantiated arguments
showing that the danger of being subjected to torture is foreseeable, personal, present and
real. However, when the complainant is in a situation where he or she cannot elaborate on
his or her case, the burden of proof is reversed and the State party concerned must investigate
the allegations and verify the information on which the communication is based. 37 The
Committee gives considerable weight to findings of fact made by organs of the State party
concerned; however, it is not bound by such findings, as it can make a free assessment of the
32 R.A.Y. v. Morocco (CAT/C/52/D/525/2012), paras. 6.3 and 6.4. See also Ayden v. Morocco
(CAT/C/66/D/846/2017), para. 7.2; Onder v. Morocco (CAT/C/66/D/845/2017), para. 6.2; and
Erdoğan v. Morocco (CAT/C/66/D/827/2017), para. 8.3.
33 Khater v. Morocco, para. 9.5. See also R.A.Y. v. Morocco, para. 6.3.
34 Committee against Torture, general comment No. 4 (2017), para. 43.
35 Kalinichenko v. Morocco (CAT/C/47/D/428/2010), para. 15.3.
36 Committee against Torture, general comment No. 4 (2017), para. 11.
37 Ibid., para. 38.
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10
GE.24-13893
information available to it in accordance with article 22 (4) of the Convention, taking into
account all the circumstances relevant to each case.38
10.5
The Committee recalls its concluding observations on the fifth periodic report of
China, in which it noted information received concerning allegations of deaths,
disappearances, torture and ill-treatment of detainees and excessive use of force against
inhabitants of the Xinjiang Uighur Autonomous Region.39 The Committee also notes that, in
its assessment report on the situation in the Xinjiang Uighur Autonomous Region, the Office
of the United Nations High Commissioner for Human Rights noted that there were numerous
reports of the use of torture and ill-treatment by the Chinese authorities.40
10.6
Taking note of the actual human rights situation in China described above, the
Committee nevertheless notes that there must be additional grounds for believing that the
individual in question would be personally at risk. The Committee takes note of the
complainants’ allegation emphasizing that the definition of torture in Chinese law is
restrictive. It notes that the State party has submitted no observations contradicting the
complainants’ allegations concerning the human rights situation in China.
10.7
The Committee reaffirms that it is for the courts of the States parties to the Convention
to assess the facts and evidence in specific cases. The appeal courts of States parties to the
Convention are responsible for reviewing the conduct of a trial, unless it can be established
that the evidence was assessed in a patently arbitrary manner or one that amounted to a
miscarriage of justice.41
10.8
The Committee notes that the torture or ill-treatment reportedly inflicted on the person
in the past is a factor to be considered when assessing the risk that the person will again face
torture or ill-treatment in the event of a return to his or her country.42 In the present case, the
Committee notes that the complainants have alleged that Mr. Aishan was arrested, detained
and then beaten by the police between 2008 and 2009, when he was a student at the China
University of Petroleum in Qingdao. The Committee notes that the Moroccan authorities
have not contested these allegations.
10.9
The Committee notes that the complainants have pointed out that Mr. Aishan, in
addition to having been arrested by the police in China, has also been pursued abroad, in
particular in Turkey. The Committee notes the information provided by the complainants that
the Red Notice issued against Mr. Aishan by INTERPOL, at the request of the Chinese
authorities, states that he was being prosecuted for membership of a terrorist organization,
that he had travelled to Turkey in 2012, then to the Syrian Arab Republic, and that he had
allegedly joined the Eastern Turkistan Islamic Movement. The Red Notice also indicated that
Mr. Aishan was the administrator of the Sadik web platform, which had allegedly served as
an inspiration for people who were arrested for terrorism in China and were involved in the
21 September 2014 terrorist attacks in the Luntai district. The Committee observes that the
State party has not presented any arguments to the contrary to contest Mr. Aishan’s political
involvement both in China and abroad, but it notes that the Court of Cassation had ruled out
the reason put forward by Mr. Aishan’s defence lawyers regarding the political nature of the
acts of which he is accused.
10.10 The Committee notes the complainants’ argument that there are substantial grounds
to believe that Mr. Aishan would be in danger of being subjected to torture if deported to
China and that this risk is aggravated in particular by the charge of terrorism brought against
him, his ethnicity as a Uighur and his real or supposed membership of the Eastern Turkistan
Islamic Movement. The Committee also notes the complainants’ argument that, because of
the seriousness of the charges brought against him, Mr. Aishan would risk imprisonment,
ill-treatment or enforced disappearance on his return to China, like many Uighurs who are
38 Ibid., para. 50.
39 CAT/C/CHN/CO/5, paras. 40 and 41.
40 See Office of the United Nations High Commissioner for Human Rights, “OHCHR assessment of
human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China”,
31 August 2022.
41 Ktiti v. Morocco (CAT/C/46/D/419/2010), para. 8.7.
42 Committee against Torture, general comment No. 4 (2017), para. 49 (b), (c) and (d).
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GE.24-13893
11
repatriated to China. The Committee notes the complainants’ argument that the State party’s
authorities failed to assess the personal risks to Mr. Aishan in the event of his extradition to
China, insofar as he was being prosecuted for the crime of terrorism. The Committee notes
that the State party has not submitted any arguments to the contrary with regard to the risks
posed by Mr. Aishan’s personal situation.
10.11 The Committee notes the complainants’ allegations regarding the observance of
judicial guarantees prior to the extradition of Mr. Aishan, who was denied access to counsel
on the day of his arrest, 20 July 2021. On the other hand, it notes that, according to the State
party, Mr. Aishan benefited from his lawyers’ visits and assistance from the very first day of
his detention and at the time of his appearance before the Court of Cassation, and that the
lawyers were able to present their case in court. The Committee notes that the complainants
have not denied that Mr. Aishan appeared to be receiving proper treatment during his
detention.
10.12 The Committee nevertheless observes that in the present case, although Mr. Aishan’s
conditions of detention are acceptable, the issues raised by the complainants under article 3
of the Convention remain relevant. It also notes that, notwithstanding the cancellation of the
Red Notice issued against Mr. Aishan by INTERPOL, the Chinese authorities have invoked
the extradition agreement with Morocco to reiterate their request for Mr. Aishan’s expulsion
on terrorism charges. The Committee also notes that the State party has rejected the
complainants’ argument that Mr. Aishan’s continued detention on the basis of the extradition
agreement between China and Morocco is unlawful. It nevertheless notes the State party’s
explanation that Mr. Aishan’s arrest took place on 20 July 2021, which was after the entry
into force of the agreement, on 16 April 2021. The Committee observes that, in the present
case, while indicating that it has complied with the Committee’s request by granting the
requested interim measures (with the result that Mr. Aishan’s deportation to China has been
halted), the State party decided to keep Mr. Aishan in custody pending extradition for over 2
years. It also observes that the State party has not indicated how to fill the legal void
surrounding Mr. Aishan’s indefinite detention.43
10.13 The Committee recalls the provisions of its general comment No. 4 (2017), according
to which the Committee will assess “substantial grounds” and consider the risk of torture as
foreseeable, personal, present and real when the existence of facts relating to the risk by itself,
at the time of its decision, would affect the person’s rights under the Convention in the case
of his or her deportation. Personal risk factors may include, among others, the person’s ethnic
origin, political affiliation, an arrest warrant without guarantee of fair treatment and trial,
previous acts of torture against the person and the risk of expulsion to a third country where
the person would be at risk of being subjected to torture.44
10.14 In the present case, the Committee observes that the risk faced by Mr. Aishan is
compounded by his ethnic Uighur background, his political involvement and the provisional
arrest warrant issued against him by the State party, which is keeping him in indefinite
detention without diplomatic assurances of a fair trial or protection from torture and
ill-treatment should he be returned to China. In view of the foregoing, the Committee
concludes that the complainants have sufficiently demonstrated that Mr. Aishan would face
a foreseeable, real and personal risk of torture if extradited to China, in violation of article 3
of the Convention.
11.
The Committee, acting under article 22 (7) of the Convention, concludes that the
extradition of Mr. Aishan to China, if it occurred, would constitute a breach of article 3 of
the Convention. As Mr. Aishan has been in preventive detention for almost 2 years, the State
party is required to release him or bring him to trial if charges are brought against him in
Morocco.
12.
Pursuant to rule 118 (5) of its rules of procedure, the Committee invites the State party
to inform it, within 90 days of the date of transmittal of the present decision, of the steps it
has taken to respond to the above observations.
43 Alhaj Ali v. Morocco, para. 1.4.
44 Committee against Torture, general comment No. 4 (2017), para. 45.
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GE.24-13893
Annex
[Original: English]
Individual opinion of Committee member Bakhtiyar
Tuzmukhamedov (partially dissenting)
1.
The majority of Committee members, in paragraph 10.14, opines that the State party
is holding Mr. Aishan in indefinite detention without diplomatic assurances of a fair trial or
of his protection from torture and ill-treatment in the event of his return to China. This text
implies, if not suggests, that the State party ought to obtain such diplomatic assurances from
the State that is requesting extradition.
2.
In Kim v. New Zealand, the Human Rights Committee reviewed in great detail
diplomatic assurances offered by China to New Zealand in the course of proceedings
concerning the extradition of Kyung Yup Kim, a national of the Republic of Korea.1 It found,
on the basis of its analysis of the content of the assurances and the elaborate negotiating
process, that the right of Mr. Kim not to be subjected to torture or to cruel, inhuman or
degrading treatment or punishment would not be violated. The majority should have been
aware of those Views adopted by the Committee’s sister treaty body as that case had been
referenced during the Committee’s review of New Zealand at its seventy-seventh session,2
and yet they did not attract my colleagues’ attention.
3.
In the first sentence of paragraph 11, the majority finds a prospective violation of
article 3 of the Convention by the State party, should it extradite the author, while simple
logic dictates that, proceeding from the language in paragraph 10.14, the violation would
occur if the author were extradited absent diplomatic assurances. Instead, as worded, the
conclusion reached by the majority in that segment of paragraph 11 is detached from the
reasoning in paragraph 10.14. What the Committee should have done was to urge the State
party to seek diplomatic assurances, review them, as described by the Human Rights
Committee in Kim v. New Zealand, and then make a determination regarding the requested
extradition.
4.
I agree with the finding expressed in the second sentence of paragraph 11 that Mr.
Aishan ought to stand trial if charges are brought against him in Morocco. However,
considering the gravity of the allegations against him, including affiliation with the Eastern
Turkistan Islamic Movement, listed as a terrorist entity by the Security Council and the
International Criminal Police Organization,3 that finding may well have been reinforced by
a call on the State party to seek evidence proving the author’s involvement in terrorist
activities and, should such evidence be provided, to comply with the principle of aut dedere
aut judicare.
1 Human Rights Committee, Kim v. New Zealand (CCPR/C/139/D/4170/2022).
2 CAT/C/NZL/CO/7, para. 25.
3 See
https://main.un.org/securitycouncil/en/sanctions/1267/aq_sanctions_list/summaries/entity/eastern-
turkistan-islamic-movement and https://www.interpol.int/en/How-we-work/Notices/View-UN-
Notices-Entities#2013-17231.