Sonko v Spain, UN Doc CAT/C/47/D/368/2008 (20 February 2012)
The UN Committee against Torture has found that Spain violated its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its treatment of Senegalese asylum seeker Mr Sonko, who drowned after being forced out of a Spanish Civil Guard vessel. This decision exemplifies that placing a person in a situation that causes his or her death will constitute cruel, inhuman or degrading treatment in contravention of article 16 of the Convention.
The Committee demanded that Spain investigate the circumstances of the case, prosecute those responsible and provide compensation to Mr Sonko’s family.
On the night of 26 September 2007, the Spanish Civil Guard intercepted four African migrants attempting to enter the Autonomous City of Ceuta (a Spanish enclave in northern Morocco) by swimming along the coast with the aid of a life jacket. One of these persons was Mr Lauding Sonko, from Senegal. The Civil Guard brought the four persons into the vessel and, after taking them into Moroccan territorial waters at a distance out from the shore, forced them into the water.
The complainant alleged that the Guard forced the asylum seekers into water out of their depth and punctured the life jackets of the three men. Spain denied these facts.
Mr Sonko clung to the vessel and explained that he could not swim but was nonetheless forced into the water. It was disputed whether the guards understood Mr Sonko’s protests. Seeing Mr Sonko struggling to reach the shore, a guard entered the water to help him. Despite efforts to revive Mr Sonko, he died shortly after.
The complainant was Ms Sonko, a Senegalese national living in Spain and the sister of Mr Sonko. Ms Sonko submitted that Spain had contravened its obligations under article 1 (prohibition on torture) and article 16 (prohibition on cruel, inhuman or degrading treatment) of the Convention.
Before considering the merits of the application, the Committee dismissed Spain’s argument that the complaint was not admissible for failure to exhaust domestic remedies, finding that the fact that the national court had dismissed the case was sufficient.
In considering the merits, the Committee noted that Spain denied that the life jackets were punctured. Despite being confronted with conflicting facts, the Committee declined to make an assessment saying that “it is not its task to weigh the evidence or to reassess the statements made regarding the facts or the credibility of the relevant national authorities.” What was important was that both parties agreed that the swimmers, including Mr Sonko, were alive when brought onto the vessel but that Mr Sonko died shortly after being brought to shore. Therefore, “an undeniable cause-effect relationship [existed] between Mr Sonko’s death and the actions of the Civil Guard officers”.
As a State’s jurisdiction extends to territory where the State exercises effective control, the Committee held the Civil Guard officers were responsible for the swimmers’ safety because they exercised control over the persons in the vessel. The Committee said that it was for Spain to explain the circumstances surrounding Mr Sonko’s death. Further, irrespective of whether the life jackets were punctured or at what distance from shore the swimmers were forced into the water, Mr Sonko “was placed in a situation that caused his death.”
The Committee held that the actions of the Civil Guards were sufficient to meet the threshold of cruel, inhuman or degrading treatment and were, therefore, a contravention of article 16 of the Convention. The Committee stated, however, that this treatment and the physical and mental suffering of Mr Sonko prior to his death did not amount to a violation of the prohibition on torture in article 1 of the Convention.
While the complainant did not contend that article 12 of the Convention had been breached, the Committee also held that Spain failed in its “absolute” obligation under this article to investigate the circumstances of Mr Sonko’s death. The Committee urged Spain to investigate the events and to prosecute and punish any person responsible for Mr Sonko’s death, and provide the complainant with adequate compensation.
In a strong dissent, Felice Gaer described the Committee's statement that “it is not its task to weigh the evidence or to reassess the statements made regarding the events in question or the credibility of the relevant national authorities” as a “shocking pronouncement”. She argued that this is the very role of the Committee and that it is authorised and required to engaged in a “free assessment” of the facts at issue under the Committee’s General Comment No. 1.
To illustrate the need to assess the facts, Ms Gaer noted that every death in custody of the State will not amount to a finding that the State party committed cruel, inhuman or degrading treatment. Further, negligent treatment is not necessarily enough to constitute a contravention of article 16 of the Convention. It was, therefore, necessary for the Committee to assess the facts and decide on what caused Mr Sonko’s death to find that the Convention was contravened. Ms Gaer concluded by saying that the Committee “has apparently determined that the State’s version of the events is not credible. It is well within its power to do so and should have stated so plainly.”
Relevance to the Victorian Charter
Section 10 of the Victorian Charter protects a person from cruel, inhuman or degrading treatment or punishment.
Due to the Committee’s refusal to analyse the facts (as soundly criticised in the dissenting opinion) this decision does not provide us with an analysis of what aspect of the Civil Guards’ behaviour amounted to cruel, inhuman or degrading treatment. However, it can be surmised that placing an asylum seeker’s life in danger will amount to cruel, inhuman or degrading treatment where a person is aware of the asylum seeker’s particular vulnerability and acts in a way to exacerbate the danger.
This decision serves as a strong reminder of Australia’s obligation to follow established procedures when handling persons seeking asylum.
Claire Agius is a lawyer at Allens Arthur Robinson.