The complainant is Abdurahim Fetouri Salem Emsak, a Libyan national born on 16 January 1977. He is facing extradition to Libya and considers that his removal would constitute a violation by the State party of article 3 of the Convention. The State party ratified the Convention on 21 June 1993 and made the declaration pursuant to article 22 (1) of the Convention on 19 October 2006. The complainant is represented by counsel.
On 17 February 2020, pursuant to rule 114 (1) of its rules of procedure, the Committee, acting through its Rapporteur on new complaints and interim measures, requested the State party not to deport the complainant to Libya while his complaint was being considered.
The facts as submitted by the complainant
On 20 September 2012, the complainant was brought by the Casablanca Criminal Investigation Department before the Crown Prosecutor at the Casablanca Court of First Instance in execution of an international arrest warrant issued by the Prosecutor General of Tripoli on 1 December 2004. The facts concerned alleged charges of trafficking and possession of drugs. After his hearing, the complainant was put in Salé prison.
Following his arrest, the complainant was the subject of a separate prosecution by the Moroccan authorities on the same charges, and an investigation into the case was initiated by the Casablanca prosecutor’s office. In March 2012, in connection with the charges brought by the Libyan authorities, the complainant was sentenced by the Moroccan courts to 8 years’ imprisonment.3
- According to the State party, the complainant was sentenced to 10 years’ imprisonment on 18 February 2013, which was reduced to 8 years’ imprisonment on 31 December 2014. ↩
On 12 December 2012, the complainant was referred to the Criminal Division of the Moroccan Court of Cassation for a decision on an extradition request made by the Libyan authorities on 22 October 2012. In the course of these proceedings, his counsel argued that there had been no criminal judgment against the complainant by a Libyan court, nor had there been any legal proceeding against him in his country. Counsel therefore urged the court to request from the Libyan authorities a copy of a court decision or any other document or judicial record establishing that the complainant was the person concerned by the warrant.
The complainant’s counsel then questioned the real motives of the Libyan authorities’ request in the very particular context of the day after the fall of the regime of Muammar Gaddafi. The complainant, who had in fact moved to Zawiyah, Libya, in December 2011 with a view to settling there permanently with his family, has never been arrested or prosecuted for anything. During this stay, he had his passport renewed on 15 December 2011 without any difficulty.
The complainant also made sure, during the hearing of 12 December 2012, to explicitly object to his extradition, by invoking the possible political motives of the arrest warrant issued by the new Libyan authorities because of disputes that pitted him against certain militia leaders during his stay in Libya. He expressed fears that he would be subjected to torture and ill-treatment in detention and would not have access to a fair trial if extradited to Libya. Despite these legitimate questions and fears, the Court of Cassation rejected these factors without even discussing them.
On 12 December 2012, the Court of Cassation ruled in favour of the complainant’s extradition. It gave reasons for its decision by referring to the agreement concluded between the Kingdom of Morocco and Libya on 27 December 1962 on judicial notices, letters rogatory, enforcement of judgments and extradition and by stating that the offences for which the complainant was the subject of an extradition request were also provided for and punished by Moroccan legislation and that the facts described in the application of the Libyan authorities were neither political in nature nor linked to a political crime. As for the petitioner’s request for a copy of a record from the Libyan authorities of any judgment of conviction, the Court noted that his extradition was not requested to enforce a judgment but to investigate the crimes he was alleged to have committed.
The Moroccan prison administration informed the complainant orally that he would be extradited to Libya upon the expiry of his sentence because, according to the administration, all the legal conditions were met. The complainant does not know whether an extradition decree by the Head of Government had been issued following the decision of the Court of Cassation and, if so, on what date.
According to a certificate dated 25 August 2019 issued by the Criminal Investigation Department of the Libyan Ministry of Justice, the complainant is not wanted by the criminal police.
The complaint
The complainant claims that, if he is extradited to Libya , he will be at risk of being subjected to torture by the Libyan authorities, in violation of his rights under article 3 of the Convention. He argues that any extradition to Libya would violate both the prohibition on extradition under article 3 (1) because of the existence of substantial grounds for believing that he would be in danger of being subjected to torture and the obligation to take into account the existence of a consistent pattern of gross, flagrant or mass violations of human rights in Libya under article 3 (2).
The complainant considers that the Court of Cassation failed to answer or give reasons for its decision on the question of the lack of prosecution in Libya, and on the lack of any judicial decision concerning him. Nor did it address the risk of torture or ill-treatment that the complainant would face if expedited to his country of origin because of the conflict situation and the serious human rights violations there.
Indeed, the human rights situation remains particularly serious in Libya, where the practice of torture persists because of the lack of security sector reform, which would have made it possible to make a clean break with past practices. Several reports by United Nations bodies have highlighted this situation, along with the places and actors involved in the practice of torture in the country.4 In particular, in January 2017, the United Nations High Commissioner for Human Rights submitted his report on the human rights situation in Libya to the Human Rights Council.5 The report, prepared in cooperation with the United Nations Support Mission in Libya, had found that arbitrary detention, deprivation of liberty, torture and other ill-treatment were widespread in Libya.6
- See, for example, A/HRC/19/68. ↩
- A/HRC/34/42. ↩
- Ibid., para. 63. See also Office of the United Nations High Commissioner for Human Rights, Abuse behind Bars: Arbitrary and Unlawful Detention in Libya, April 2018; A/HRC/38/39/Add.2, paras. 9, 38, 40 and 43; and CMW/C/LBY/CO/1, paras. 10, 16, 28 and 34. ↩
This situation entails a personal and foreseeable risk for the complainant given the particular circumstances in which the arrest warrant was issued in 2012 – resulting from the complainant’s opposition to the militias in the Zawiyah district, which are integrated into the Libyan security sector – and the political and security context in this district, which at the time of the events was marked by clashes between militias.7 These risks are all the more real given that the acts of which the complainant is accused fall within the jurisdiction of the Special Deterrence Force, which operates as a militia and which, although it comes under the Ministry of the Interior of the internationally recognized Government of National Accord, does not answer to the Prosecutor. This means that the Prosecutor does not exercise any real supervision of the interrogations. Moreover, no proceedings have been instituted against the complainant by the judicial authorities of the Government of National Accord. Therefore, the Libyan authorities could not guarantee the complainant’s protection from torture and illtreatment in detention.
- See Hélène Bravin and Kamel Almarache, “Le temps des milices et des gangs,” Les Cahiers de l’Orient, vol. 111, No. 3, 2013, pp. 107–146. See also A/HRC/28/51, paras. 2–10. ↩
Lastly, the complainant considers that, in view of the circumstances of the extradition request and the charges against him, there is a strong likelihood that he would be detained in Mitiga, under the control of the Special Deterrence Force, if he were to be extradited. However, since December 2015, the Human Rights, Transitional Justice and Rule of Law Division of the United Nations Support Mission in Libya “has documented grave human rights violations committed at the Mitiga detention facility, such as prolonged arbitrary and incommunicado detention, torture, prolonged solitary confinement, inhuman detention conditions, deaths in custody and summary executions”.8 In addition, the United Nations Support Mission in Libya and the Office of the United Nations High Commissioner for Human Rights visited the Mitiga detention centre in May 2016 and observed dire conditions.9 Therefore, in the conclusions and recommendations of his January 2017 report, the High Commissioner recommended that the international community ensure respect for the principle of non-refoulement and provide protection, in accordance with international law, for those with a well-founded fear of persecution.10
State party’s observations on admissibility and the merits
In its observations of 9 June 2021 and 13 July 2022, the State party first turned its attention to a description of the facts. It states that the complainant had been present in Morocco since 2001, when he had entered the country using a forged passport. As the head of an international drug trafficking and money-laundering network, he was arrested in Morocco on 6 March 2012 by the Moroccan security services following the dismantling of this network, presented before the Prosecutor on 9 March 2012, and then prosecuted and convicted in 2013 in Morocco in this context. To date, he remains in detention pending extradition, as he still has an international arrest warrant out for him.
The State party submits that the complainant’s arrest was the result of a wide-ranging investigation by the national brigade of the criminal investigation department into offences under Moroccan law committed on Moroccan soil.11 On 18 February 2013, he was sentenced at first instance by the Casablanca Criminal Court of First Instance to 10 years’ imprisonment and a fine of 500,000 dirhams for forming a criminal gang specializing in international drug trafficking, possession of drugs and facilitation of their consumption, forgery and making use of forged documents, illegal residence and complicity. This sentence was reduced on appeal, on 31 December 2014, to 8 years’ imprisonment and a fine of 500,000 dirhams on the same charges.
- Drug trafficking, forgery and making use of forged documents, illegal residence, and infringements of the law on foreign exchange, provisions on the declaration of foreign currency and legal rules relating to the Customs and Indirect Tax Administration. ↩
The State party points out that, on 21 April 2016, the Crown Prosecutor at the Casablanca Court of First Instance ordered the complainant’s continued imprisonment from the end of his sentence scheduled for 6 March 2020, by way of enforcement against the person, for a term of 2 years, for non-payment of a fine of 2,248,254,701 dirhams demanded by the Customs and Indirect Tax Administration. His release was scheduled for 6 March 2022. However, on 16 March 2021, the Director of Tiflet 2 local prison received a letter from the Crown Prosecutor at the Casablanca Court of First Instance, in which he ordered the release of the complainant following the withdrawal of the claim of the Customs and Indirect Tax Administration. However, the complainant was kept in detention for extradition purposes.
The State party recalls that, in the context of the extradition request, the Court of Cassation had issued an opinion on 12 December 2012 approving the request for the extradition of the complainant. Contrary to what is reported in the present complaint, the State party asserts, however, that the complainant – who was assisted by a lawyer – did not challenge the extradition request per se, nor did he invoke a risk of being exposed to torture or other forms of ill-treatment in his country. He merely “requested” a copy of the judgment under which he had been convicted in Libya, of which he was presumably unaware. In this context, it should be noted that the Libyan authorities are not requesting the extradition of the applicant to enforce a court decision, but to have him investigated for the offences he has allegedly committed in Libya.
The State party specifies that an extradition order was subsequently issued on 13 May 2013 under the administrative phase of the extradition proceedings. However, this procedure was suspended because of domestic proceedings brought in connection with offences that Morocco was accused of committing, it being understood that the proceedings in Morocco are not related to the Libyan extradition request. On 24 July 2013, the Libyan authorities were informed of this situation.
The State party refers to article 721 of the Code of Criminal Procedure, which provides that extradition will not be granted if the State has substantial grounds for believing that an extradition request apparently related to an ordinary offence has in fact been made for the purpose of prosecuting or punishing a person on grounds of his or her race, religion, nationality or political opinion, or may aggravate this person’s situation for any of these reasons. The Court of Cassation stated in its reasons that it did not appear from the documents in the file that the facts for which extradition was requested were of a political nature or that the request was made for political purposes. The State party considers that the complainant, during his appearance before the Court of Cassation, in the presence of his lawyer, stated that he had no objection to his being handed over to the judicial authorities and requested his extradition in accordance with the laws in force, without invoking a possible risk of torture.
Complainant’s comments on the State party’s observations
On 22 September 2021, the complainant argued that the State party did not provide in its version of the facts responses to the considerations relating to the risk of torture to which he would be exposed if he were extradited. For the complainant, in accordance with its commitments, the State party cannot limit itself to the documents in the file and must examine the human rights situations in the requesting country in which the principle of nonrefoulement applies. In this connection, the Committee has provided some nonexhaustive examples of human rights situations that may constitute an indication of risk of torture to be taken into account in States parties’ decisions on the removal of a person from their territory and when applying the principle of non-refoulement. Thus, States parties should determine, inter alia, whether the person has been judged in the State of origin or would be judged in the State to which the person is being deported in a judicial system that does not guarantee the right to a fair trial.12
- Committee against Torture, general comment No. 4 (2017), para. 29 (d). ↩
In the present case, the complainant is not officially wanted by the Libyan authorities, as indicated by the certificate dated 25 August 2019 issued by the Tripoli criminal investigation department to the appointed lawyer, which states that he “is not wanted by the criminal police”. The complainant therefore considers that there is a strong likelihood that the extradition request is motivated by political leanings, or even tribal, family or personal vengeance, as is often the case in Libya today, and that he will not be able to benefit from all the guarantees of a fair trial. This is all the more worrying because, given the current situation in Libya, it seems difficult that these legal guarantees can be offered to the complainant.
The complainant then recalls that, according to the Committee, the principle of nonrefoulement must be applied if the person concerned is expelled to a State where the inherent right to life is denied and where he or she would be exposed, inter alia, to a risk of extrajudicial execution or enforced disappearance, or to a State in which the death penalty is in force.13 However, the Moroccan authorities refuse to take into consideration the conditions of the detainees who are often tortured by Libyan militias, especially following extraditions. Among them, the Special Deterrence Force is one of the main security forces in the Libyan capital. It is nominally dependent on the Ministry of the Interior, but in reality acts autonomously. This militia, which controls numerous sites, including one of Tripoli’s largest detention centres at the Mitiga airbase, is beyond the control of any judicial authority and arbitrarily detains more than 1,500 people, most of whom are not subject to legal proceedings.
- Ibid., para. 29 (k). ↩
The complainant recalls that various human rights organizations have reported disturbing violations committed with impunity by Libyan militias, including the Special Deterrence Force. The risk of torture for the complainant is all the more real as the Special Deterrence Force has set itself up as a political and religious police force and considers itself to be entrusted with the task of combating all offences against morality and drug trafficking. It should also be noted that the Special Deterrence Force controls the border police at the Mitiga airport and that, as such, any person extradited is arrested on the spot, without even being brought before a judicial authority. The Prosecutor does not exercise any real supervision of the interrogations, which are routinely accompanied by torture and illtreatment, according to the testimonies collected from many victims.
For all these reasons, it seems clear to the complainant that the Libyan authorities could not guarantee his protection against acts of torture and ill-treatment in the event of extradition, let alone guarantee him a fair trial. The complainant therefore requests his release from detention.
Consideration of admissibility
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.
The Committee recalls that, in accordance with article 22 (5) (b) of the Convention, it shall not consider any communication from an individual unless it has ascertained that the individual has exhausted all available domestic remedies. It notes that, in the present case, the State party did not contest either the fact that the complainant had exhausted all available domestic remedies or the admissibility of the complaint.
The Committee considers that the complaint raises substantive issues under article 3 of the Convention and that these issues should be examined on the merits. As the Committee finds no obstacles to the admissibility of the present communication, it declares it admissible and proceeds with its consideration of the merits.
Consideration of the merits
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.
In the present case, the issue before the Committee is whether the return of the complainant to Libya would constitute a violation of the State party’s obligation under article 3 of the Convention not to expel or to return (“refouler”) a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.
The Committee must evaluate whether there are substantial grounds for believing that the complainant would be personally in danger of being subjected to torture upon return to Libya. In assessing that risk, the Committee must take into account all relevant considerations, pursuant to article 3 (2) of the Convention, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights. However, the Committee recalls that the aim is to establish whether the complainants would be personally at a foreseeable and real risk of being subjected to torture in the country to which they 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 the complainants 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. Moreover, the Committee notes that, as Libya has not made the declaration provided for in article 22 (1) the Convention, in the event of a violation of the complainant’s rights under the Convention, the complainant would be deprived of the legal option of recourse to the Committee for protection of any kind.14
- Tahmuresi v. Switzerland (CAT/C/53/D/489/2012), para. 7.7. ↩
The Committee is aware that numerous aspects of the human rights situation in Libya remain problematic. Nevertheless, it recalls that the occurrence of human rights violations in the complainant’s country of origin is not, of itself, sufficient for it to conclude that a complainant would face a personal risk of being tortured. The Committee recalls its general comment No. 4 (2017), according to which the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. Although the risk does not have to be shown to be “highly probable”, the burden of proof generally falls on the complainant, who must present an arguable case establishing that he or she faces a “foreseeable, real and personal” risk.15 The Committee also recalls that, in accordance with its general comment No. 4 (2017), it 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 information available to it in accordance with article 22 (4) of the Convention, taking into account all the circumstances relevant to each case.16
In the present case, the Committee notes that the complainant maintains that he fears for his life if he returns to Libya because he considers that the particular circumstances in which the arrest warrant was issued in 2012 are linked to his opposition to the militias in the Zawiyah district. To support his argument, he produces a certificate issued by the criminal investigation police of Tripoli dated 25 August 2019, which establishes that he is not wanted by the police.
The Committee observes that the Libyan authorities requested the complainant’s extradition on the basis of an international arrest warrant issued by the Tripoli Prosecutor General on 1 December 2004. It notes that this arrest warrant is based on grounds other than those on which the complainant was convicted in Morocco for drug trafficking. Furthermore, while the complainant insists that he has not been prosecuted or convicted in Libya, the Committee notes that the arrest warrant was not issued for the purpose of enforcing a court order, but in order for the complainant to be investigated for the offences he allegedly committed in Libya. In this sense, the Committee considers that the arrest warrant of 1 December 2004 is well-founded for the purposes of Libyan justice and justifies the request for extradition of the complainant.
The Committee also notes that the complainant was given the opportunity to substantiate and clarify his claims before the Moroccan Court of Cassation. However, on the basis of the evidence provided, it has not been possible to confirm the complainant’s allegations or to determine the existence of a personal, foreseeable, real and present risk of being subjected to torture in the event of his return to his country of origin. On the basis of the information before it, the Committee therefore considers that the complainant has not provided evidence that the international arrest warrant of 1 December 2004 would contravene the law or that he would be personally targeted by Libyan militias and concludes that the information provided does not demonstrate that he would be personally at risk of torture or inhuman or degrading treatment if he returned to Libya.
The Committee is therefore of the view that the information submitted by the complainant is insufficient to substantiate his claim that he would be at a foreseeable, real and personal risk of torture if he were returned to Libya.
The Committee, acting under article 22 (7) of the Convention, concludes that the extradition of the complainant to Libya would not constitute a violation by the State party of article 3 of the Convention.