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CAT |
CAT |
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General comment No. 1: |
第1号一般性意见： |
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Implementation of article 3 of the Convention in the context of article 22 (Refoulement and communications) |
参照《公约》第22条执行第3条(遣回与来文) |
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Sixteenth session (1996) |
第十六届会议(1996年) |
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In view of the requirements of article 22, paragraph 4, of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that the Committee against Torture “shall consider communications received under article 22 in the light of all information made available to it by or on behalf of the individual and by the State party concerned”, |
鉴于《禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》第22条第4款要求禁止酷刑委员会“参照个人或其代表以及有关缔约国所提供的一切资料，审议根据第22条所收到的来文”， |
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In view of the need arising as a consequence of the application of rule 111, paragraph 3, of the rules of procedure of the Committee (CAT/C/3/Rev.2), and |
鉴于因适用委员会《议事规则》(CAT/C/3/Rev.2)规则111第3段所引起的需要，并 |
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In view of the need for guidelines for the implementation of article 3 under the procedure foreseen in article 22 of the Convention, |
鉴于有必要根据《公约》第22条预订的程序为实施第3条拟订准则， |
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The Committee against Torture, at its nineteenth session, 317th meeting, held on 21 November 1997, adopted the following general comment for the guidance of States parties and authors of communications: |
禁止酷刑委员会第十九届会议1997年11月21日第317次会议通过了下列一般性意见，作为各缔约国和撰文人的指导： |
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1. |
1. |
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Article 3 is confined in its application to cases where there are substantial grounds for believing that the author would be in danger of being subjected to torture as defined in article 1 of the Convention. |
第3条仅适用于有充足理由认为撰文人可能遭受《公约》第1条定义的酷刑的案件。 |
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2. |
2. |
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The Committee is of the view that the phrase “another State” in article 3 refers to the State to which the individual concerned is being expelled, returned or extradited, as well as to any State to which the author may subsequently be expelled, returned or extradited. |
委员会认为，第3条中的“另一国家”指所涉个人正在被驱逐、遣返或引渡的国家以及撰文人今后可能被驱逐、遣返或引渡的国家。 |
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3. |
3. |
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Pursuant to article 1, the criterion, mentioned in article 3, paragraph 2, of “a consistent pattern or gross, flagrant or mass violations of human rights” refers only to violations by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. |
根据第1条，在第3条第2款中提及的“一贯严重、公然、大规模侵犯人权情况”的标准，仅指由公职人员或以官方身份行事的其他人施行或煽动或认可或默许的侵犯人权情况。 |
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Admissibility |
能否受理 |
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4. |
4. |
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The Committee is of the opinion that it is the responsibility of the author to establish a prima facie case for the purpose of admissibility of his or her communication under article 22 of the Convention by fulfilling each of the requirements of rule 107 of the rules of procedure of the Committee. |
委员会认为，撰文人有责任遵守委员会《议事规则》规则107的各项要求，提出表面上证据确凿的案情，以便委员会根据《公约》第22条受理其来文。 |
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Merits |
事实依据 |
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5. |
5. |
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With respect to the application of article 3 of the Convention to the merits of a case, the burden is upon the author to present an arguable case. |
就根据《公约》第3条确定一个案件的事实依据而言，撰文人有责任提出可以论证的案件。 |
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This means that there must be a factual basis for the author’s position sufficient to require a response from the State party. |
也就是说，撰文人的立场必须有充足的事实依据，才能要求缔约国作出答复。 |
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6. |
6. |
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Bearing in mind that the State party and the Committee are obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. |
铭记缔约国和委员会有义务评估是否有充足理由认为撰文人如被驱逐、遣返或引渡可能遭受酷刑，在评估遭受酷刑的危险时，绝不能仅仅依据理论或怀疑。 |
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However, the risk does not have to meet the test of being highly probable. |
但是，不必证明这种危险极有可能发生。 |
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7. |
7. |
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The author must establish that he/she would be in danger of being tortured and that the grounds for so believing are substantial in the way described, and that such danger is personal and present. |
撰文人必须证明自己可能遭受酷刑，这样认为的理由如所述的那样充足，这种危险是针对个人的，而且切实存在。 |
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All pertinent information may be introduced by either party to bear on this matter. |
双方均可以就此事提出一切有关资料。 |
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8. |
8. |
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The following information, while not exhaustive, would be pertinent: |
下列资料虽然不详尽，但切合需要： |
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(a) |
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Is the State concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights (see article 3, paragraph 2)? |
是否有证据表明所涉国家是一个一贯严重、公然或大规模侵犯人权的国家(见第3条第2款)？ |
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(b) |
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Has the author been tortured or maltreated by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past? |
撰文人是否曾遭受公职人员或以官方身份行事的人施行或煽动或认可或默许的酷刑或虐待？如果是，是否是最近发生的？ |
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(c) |
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Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects? |
是否有医疗证据或其他独立证据证明撰文人关于曾遭受酷刑或虐待的指控？酷刑是否有后遗症？ |
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(d) |
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Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered? |
以上(a)段所指情况是否已发生变化？境内人权情况是否已发生变化？ |
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(e) |
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Has the author engaged in political or other activity within or outside the State concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the State in question? |
撰文人是否在所涉国家境内外从事政治活动或其他活动，使得他(她)如被驱逐、遣返或引渡到该国，特别容易遭受酷刑？ |
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(f) |
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Is there any evidence as to the credibility of the author? |
是否有任何证据证明撰文人是可信的？ |
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(g) |
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Are there factual inconsistencies in the claim of the author? If so, are they relevant? |
撰文人的指控中是否存在与事实不符的情况？如果存在，是否有重大关系？ |
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9. |
9. |
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Bearing in mind that the Committee against Torture is not an appellate, a quasi‑judicial or an administrative body, but rather a monitoring body created by the States parties themselves with declaratory powers only, it follows that: |
铭记禁止酷刑委员会不是一个上诉机构、准司法机构或行政机构，而是由缔约国自己设立的仅享有确认法律关系权力的监测机构，因此： |
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(a) |
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Considerable weight will be given, in exercising the Committee’s jurisdiction pursuant to article 3 of the Convention, to findings of fact that are made by organs of the State party concerned; but |
委员会在行使《公约》第3条规定的管辖权时，将极其重视所涉缔约国机关的调查结论；但 |
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(b) |
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The Committee is not bound by such findings and instead has the power, provided by article 22, paragraph 4, of the Convention, of free assessment of the facts based upon the full set of circumstances in every case. |
委员会不受这种结论的约束，而是根据《公约》第22条第4款，委员会有权依据每个案件的全部案情自由评估事实真相。 |
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注 |
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* Contained in document A/53/44, annex IX. |
载于A/53/44号文件，附件九。 |